In Re Kenya H.

07/05/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 1, 2017
IN RE KENYA H.
Appeal from the Juvenile Court for Hamilton County
No. 272454 Robert D. Philyaw, Judge
No. E2017-00130-COA-R3-PT
This appeal concerns the termination of a father’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for
Hamilton County (“the Juvenile Court”) seeking to terminate the parental rights of
George C. (“Father”) to his minor child Kenya H. (“the Child”). After a trial, the
Juvenile Court entered an order terminating Father’s parental rights. Father appealed. We
reverse the grounds of substantial noncompliance with the permanency plan and willful
failure to visit, but affirm the ground of wanton disregard. We further affirm that
termination of Father’s parental rights is in the Child’s best interest. The judgment of the
Juvenile Court is affirmed, in part, and reversed, in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and KENNY W. ARMSTRONG, JJ., joined.
Emily Brenyas, Chattanooga, Tennessee, for the appellant, George C.
Herbert H. Slatery, III, Attorney General and Reporter, and, Kathryn A. Baker, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
The Child was born to Father and Ann. H. (“Mother”) in July 2014. The Child
was born at home. Mother gave the Child to relatives. In September 2014, DCS
petitioned for and was granted temporary legal custody of the Child. In November 2014,
the Juvenile Court adjudicated the Child dependent and neglected. In October 2014,
Father signed on to a parenting plan. Father was informed that he needed to establish
paternity in order to visit with the Child. Father then disappeared. DCS reestablished
contact with Father when he was incarcerated on September 9, 2015. Judgment later was
entered against Father on evading arrest, driving on a suspended/revoked license, and
failure to appear. Father remained incarcerated through March 10, 2016. While in jail,
Father worked on certain of his permanency plan responsibilities. For example, Father
took part in parenting and anger management classes. On June 24, 2016, DCS filed a
petition seeking to terminate Father’s parental rights to the Child. Trial was held in
October 2016, and Father’s counsel was present but not Father.
Katherine Blackwell (“Blackwell”), the DCS employee supervising visits between
Father and the Child, testified that Father’s first supervised visit occurred on March 29,
2016. Blackwell stated that Father was “kind of standoffish” and that “we actually had to
end the visit a little early because the child was crying uncontrollably to the point to
where she was gagging.” After Father missed three visits in August 2016, the visitation
was removed from Blackwell’s schedule.
Kalia Williams (“Williams”), a former family service worker for DCS who
worked on the Child’s case, testified as follows:
Q. Could you please tell the Court how [the Child] came into the custody of
the Department, please?
A. Yes, ma’am. [The Child] was born in-home July 14th of 2014. [The
Child] was then given to a relative of [Father’s], I want to say.
THE COURT: Did you say born at home?
THE WITNESS: Yes, sir.
A. The baby did not have any identification. She didn’t have a birth
certificate, insurance card or anything like that. And the guardian that she
had at the time needed to have her seen for medical treatment and was
unable to, so she took her to the Rhea County office of Department of
Children’s Services and divested custody because she couldn’t get medical
treatment for her, and then that’s when I got the case.
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Q. Okay. So how did she go from being in Rhea County DCS to Hamilton
County DCS?
A. Because I had a prior -- a case already open on the siblings. The mother
had an open case with the Department, so the child was transported down
here.
Q. Okay. And when did you first make contact with the parents in this
case?
A. My first contact with [Mother] was in September of 2014. She was here
on the case of her children, so that was my first contact with her. And my
first contact with [Father], I want to say, was maybe November of 2014.
Q. Now, at the time that [the Child] first came into custody, was [Father]
her legal father?
A. Yes.
Q. They had already established that?
A. Oh, no. I’m sorry. DNA had not been established yet.
Q. Okay. Was he holding himself out to be her father?
A. Yes.
Q. And how did you become aware of that?
A. He stated that he was the father, and [Mother] also stated that he could
be the father of the baby.
Q. Did [Mother] or [Father] ever tell you that they were living together at
the time that their child was born?
A. Yes.
Q. Did [Mother] or [Father] ever tell you how the child came to be born at
home rather than in a regular hospital setting?
A. Speaking with [Mother], she told me she had the baby at home due to
her prior involvement with the Department, she was fearful that the
Department would take her child away from her, so she didn’t want to have
the baby in the hospital. And she also told me that [Father] had been
abusive to her, would not allow her to go to a hospital to have the baby.
Q. Okay. Let’s talk about that. What disclosures did [Mother] make to you
regarding the alleged conduct of [Father]?
A. [Mother] told me that [Father] had beat her on several occasions. She
showed marks on her body, on her arms, on her legs, on her right eye. She
stated that [Father] had hit her with the plug of a dryer, the socket part had
hit her in her face and caused her to have partial blindness in her right eye.
Yeah, that’s what she told me.
Q. At any time, did [Mother] discuss with you that she was being held
captive?
A. She did. When I finally saw her again in September, we did talk about
the length of time that she was absent from the other children’s case. She
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stated that [Father] was pretty much holding her against her will, would not
let her come to visitations or speak to anybody outside of that home
regarding him or the other two children.
Q. Okay. And during your involvement in this case, did the parents
maintain contact with you?
A. Not regularly.
Q. What efforts did you make to maintain contact with the parents?
A. As far as [Mother] is concerned, I know she had a Facebook account, so
I would speak to [Mother] as often as I could via Facebook. [Father], the
only number I had for him was his mother’s number. That’s the only
address I initially had, so I would try to do contact that way. I’d try to call.
I would send contact letters. Go by the house, [Father] wasn’t there, or
[Father’s] mother would say that he was out of town. She was unaware of
where his whereabouts were.
Continuing her testimony, Williams stated:
Q. Okay. As far as [Father] is concerned, what were his specific tasks and
responsibilities under the first plan?
A. [Father] was to establish paternity of [the Child] through DNA testing,
obtain and maintain housing for a period of six months, participate in
domestic violence counseling, participate in alcohol and drug assessment
and follow all recommendations, sign required releases, have a mental
health evaluation, to address concerns of anger management and depression
and follow those recommendations, maintain legal verifiable income and
provide verification, adhere to no contact order with [Mother], and pay
child support as ordered.
Q. So what, if any, tasks or responsibilities did [Father] complete while you
were involved with this case?
A. [Father] did have stable housing. He was residing with his mother in the
home with her. He did eventually establish paternity of [the Child]. He
participated in a parenting class while he was in Silverdale. He participated
and completed anger management and an alcohol and drug education class
while in Silverdale.
On cross-examination, Williams testified:
Q. When [Father] reappeared, did he offer any explanation of what had
happened, where he was, where he had been?
A. He did.
Q. What was it?
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A. [Father] stated that he was out of town and was being held against his
will by family members, stated that they would not allow him to leave the
home. In some kind of way, he got -- he escaped and was able to come
back down to Chattanooga.
Q. Okay. At that time, was he on his medication?
A. I do not believe he was.
Q. Okay. Can you describe what it’s like to talk to [Father] when he’s not
on his medication?
A. [Father] is very paranoid. [Father] has a lot of extreme stories regarding
his circumstances. [Father] believes there are people out to kill him and
that people are listening in on conversations, digging up holes in his yard,
and just a lot of bizarre activities.
Q. Okay. So when he is on his medications, is it fairly obvious?
A. Yes.
Q. Okay. And in the spring when he got out of jail, was he -- could you tell
if he was on his medication or not?
A. Yes.
Q. My concern is that you said he’s not -- he did not follow up with Mental
Health Co-op. Where were his meds coming from?
A. I have no idea. I don’t believe that he was on any type of medication.
Oh, I’m thinking prior. Once he got, I don’t -- he was released with
medication from Silverdale, he had a certain supply of medication that they
released him with, and he was to follow up, but he never did.
Q. To your knowledge?
A. To my knowledge, he never did.
Mother testified. Regarding Father’s conduct toward her while she was pregnant
with the Child, Mother stated:
Q. So let’s talk about that. What all has [Father] done to you?
***
A. She was in my stomach, I was pregnant with her, and all these scars, he
beat me with extension cords. My leg, I have scars all on my leg. He
messed my eye up. I can’t see out of it. I’m legally blind in this eye. And
I went to the doctor and they said I have cataracts because of him hitting me
with the dryer cord and it messed my eye up. Then I had to have [the
Child] at home. I never went to the hospital. I had her at home. He
wouldn’t let me go to the hospital because he don’t want no cops or nothing
seeing scars on my arms so he won’t go to jail.
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Q. [Mother], did [Father] know that you were pregnant with his child?
A. Yes, he did. He pushed me down some steps and I landed directly on
my stomach, and he just kept on whipping me, beating me with extension
cords, tied me up, duct-taping me, everything. But he will sit there and lie
to you about he didn’t do nothing to me, but he did.
Q. Was he holding you captive at home?
A. You might as well say yeah, he was. He wouldn’t let me talk to my
family. That’s why [J.] and [B.], my other kids, got taken from me,
because I was with him.
Diana Sutton (“Sutton”), a family service worker with DCS, testified. Sutton
became involved in the present case in May 2016. Sutton testified:
Q. Are you aware of anything that would have prevented [Father] from
visiting [the Child] after he was released from incarceration?
A. I came -- I got this case in May. He was visiting, and then in June he
left and went to Georgia and stayed for about a month, or maybe over a
month, June and July. I didn’t know where his whereabouts was, and his
mom said he had went to Georgia to live with his dad to find a job -- or to
stay with his dad to find a job. So other than that, no.
Q. Would you say he maintained contact with you?
A. No, he didn’t. I always spoke with his mother.
Q. The mother was always the go-between?
A. Yes.
Q. Have you ever been out to [Father’s] residence?
A. I have not.
Q. And since you have been on this case, have the parents made any
progress or changes in their circumstances that would make it appropriate
for [the Child] to return to them?
A. No.
Q. As far as [Father] is concerned, what are the barriers to reunification?
A. Mental health stability.
***
Q. And is [the Child] currently placed in a pre-adoptive home?
A. She is.
Q. Who is she in the home of currently?
A. William [E.] and Charlotta [E.].
Q. Okay. How is she doing now?
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A. She’s doing wonderful. She’s happy. The family is just good to her.
She doesn’t know any other family but the [E’s].
The Juvenile Court took the case under advisement. In December 2016, the
proceedings resumed. Father was present at this hearing and testified as follows:
THE COURT: Okay. So you heard. You’ve been here the whole time.
You heard what’s been represented to the Court, is that you no longer want
to contest the petition for termination against you that the Court’s heard
proof on, and, further, that you believe it’s in the child’s best interest for
your parental rights to be terminated so that the child can be adopted.
You’ve heard all of that said?
[FATHER]: Yes, sir.
THE COURT: And is that your position today?
[FATHER]: Yes, sir.
THE COURT: And have you had time to think about that and speak to your
attorney?
[FATHER]: Yes, sir.
In December 2016, the Juvenile Court entered its final judgment terminating
Father’s parental rights to the Child based upon the following grounds: 1) substantial
noncompliance with the permanency plan; 2) abandonment by incarcerated parent for
failure to visit; and, 3) abandonment by incarcerated parent for wanton disregard. The
Juvenile Court found also that termination of Father’s parental rights is in the Child’s best
interest. The Juvenile Court found and held, as pertinent:
Abandonment by Incarcerated Parent
The State has established the ground of Abandonment by
Incarcerated Parent, pursuant to T.C.A. §§ 36-1-113(g)(1) and 36-1-
102(1)(A)(iv), by clear and convincing evidence as to Respondent, [Father].
28) Respondent, [Father], was incarcerated part, or all of, the four
(4) months prior to the filing of the petition. [Father] became incarcerated
on September 9, 2015 and remained incarcerated until March 10, 2016.
29) During the four (4) months preceding his incarceration, there is
no question that he did not visit the child, as his first visit with the child
was not until March 29, 2016. FSW Kalia Williams testified that she
requested that prior to visitation beginning between [Father] and the child,
that he submit to a DNA test to determine if he was the father of the child
or that he establish paternity in some other way. FSW Kalia Williams
testified that she offered him assistance with obtaining the DNA test;
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however, [Father] failed to cooperate with the Department and his
whereabouts became unknown until he was arrested and incarcerated. It
was during that time that the Department was able to obtain a DNA sample
from [Father] for the purpose of establishing paternity pursuant to his
permanency plan and as a condition precedent scheduling visitation with
the child.
30) [Father] chose to discontinue his contact with the Department
despite signing a permanency plan and agreeing that he would establish
paternity for the child. Not only did he fail to make himself available for
the DNA test, but he failed to make himself available to visit the child due
to his absence from this case. Establishing paternity was not only
something that was within the control of [Father], but something that the
Department would have been able to assist him in accomplishing. Once
[Father] became incarcerated, the Department assisted him with the
establishment of paternity and scheduled visitations with him and the child
upon his release. However, based upon [Father’s] willful failure to
participate in the DNA/establishment process in the four months prior to his
incarceration, the Court should find by clear and convincing evidence that
his failure to visit was in fact willful.
31) The Respondent, [Father], has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.
32) Specifically, [Father] beat the mother severely while she was
pregnant with the subject child, causing her to have various injuries
including partial blindness in her eye from hitting her in the face with the
socket of a dryer cord. [Father] held the mother hostage at the home
without allowing her to seek medical attention for her injuries and medical
attention to assist with the birth of the child. Following the child’s removal
into foster care, [Father] failed to participate with the Department in
working towards reunification and failed to take steps to legitimate and
support the child. Then in September 2015, [Father] was arrested for
driving on a suspended license, evading arrest and for failure to appear,
which resulted in his incarceration until March 2016. Following his
release, he failed to maintain contact with the child and Department.
[Father] has significant mental health concerns that require medication and
yet [Father], despite acknowledging to Department staff that he needs help
with sobriety and his mental health, has taken no steps to remedy or address
these conditions. Additionally, [Father] failed to appear for trial despite the
Department’s attempts to transport him to the hearing. All of these acts,
alone and in combination, evidence a wanton disregard by [Father] for the
welfare of the child to such a degree that it would be detrimental to the
child to be placed in the care of the Respondent.
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33) FSW Kalia Williams testified that [Father] held himself out to be
the father of the child to her, and [Mother] testified that she resided with
[Father] during the birth of the child. There is no question that [Father]
knew about the mother’s pregnancy when he chose to severely beat the
mother, and that he knew about the existence of the child when he held the
mother against her will, denying her an opportunity to seek medical care for
the child at the time of the child’s birth. There is no question that [Father]
knew that the child was placed into foster care and was in need of a parent
once the child entered custody, yet he failed to cooperate or establish
paternity or visit with the child. Further, [Father] chose to engage in
criminal behavior which caused him to be incarcerated for a period of six
months, again taking him away from the child.
34) Based upon [Father’s] knowledge of the child during the
mother’s pregnancy and his behaviors during and following the mother’s
pregnancy that constitute a wanton disregard for the child, the Court finds
that he abandoned the child by wanton disregard by clear and convincing
evidence.
Substantial Noncompliance with Permanency Plan
The State has established the ground of Substantial Noncompliance
with Permanency Plan, pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-
403(a)(2), by clear and convincing evidence as to both Respondents.
***
38) The Department developed three permanency plans with
[Father] over the course of the child’s custodial episode. The first
permanency plan was developed on October 16, 2014 and was later ratified
by the Court as finding the responsibilities in the plan were reasonably
related to the reasons that necessitated foster care. The Respondent,
[Father], participated in the development of the plan in person.
39) The Department provided a copy of the Statement of
Responsibilities outlining the responsibilities of [Father] as follows:
establish paternity for the child; obtain safe, stable housing; participate in
domestic violence counseling and/or education; adhere to the no contact
Order with [Mother]; submit to a mental health evaluation and follow all
recommendations; provide proof of legal, verifiable income; visit the child
regularly; maintain regular contact with the Department; and pay child
support. [Father] acknowledged receipt of the permanency plan and the
Criteria for Termination of Parental Rights.
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***
43) [Father] made absolutely no progress on his permanency plan
until he was incarcerated from September 9, 2015 to March 10, 2016.
While incarcerated, DNA was obtained to accomplish the goal of
establishment and he attended an alcohol and drug education class and
anger management class. However, upon his release, he failed to follow
through with the recommendations of his alcohol and drug assessment and
failed to follow through with mental health treatment despite his admission
to Department staff about needed assistance maintaining sobriety and
needing to have his mental health medication reevaluated. Despite the
Department’s reasonable efforts to assist [Father], he failed to show proof
of stable housing and income, failed to visit regularly with the child, failed
to show proof of alcohol and drug treatment and mental health treatment,
and failed to maintain contact with the Department. [Father] made no
efforts to place himself in a position to parent the child or develop a
meaningful relationship with the child despite the Department’s assistance.
44) The Department entered into a permanency plan with [Father]
because he was not only identified as the father of the child by [Mother],
but he himself, held himself out to be the father of the child. The
Department required [Father], as they do in all cases, to establish paternity
of the child in an effort to aid in reunification. The Department then
assisted in the establishment of paternity. Not only did [Father] have from
the time that the child entered foster care to complete the plan, he could still
be working on his responsibilities now; however, he stopped
communicating with the Department and failed to appear at the hearing that
was to determine if his rights would be forever severed to the child.
***
49) The Court finds clear and convincing evidence, pursuant to
T.C.A. § 36-1-113(i), that it is in the child’s best interest for termination to
be granted as to Respondent, [Father], because he has shown brutality,
abuse or neglect towards both the subject child and towards the child’s
mother, [Mother]. [Mother] testified that she was a victim of domestic
violence at the hands of [Father], particularly while pregnant with the child,
while giving birth to the child, and immediately following the birth of the
child. While [Father] did not appear at trial, [Mother] testified that she
believed it would be in the best interest for [Father’s] rights to be
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terminated based upon his prior violent behavior towards her and because
of his aggressive tendencies.
50) The Court finds clear and convincing evidence, pursuant to
T.C.A. § 36-1-113(i), that it is in the child’s best interest for termination to
be granted, as a change of caretakers and home is likely to have a highly
negative effect on the child. The child has developed a strong bond with
the foster family and removing the child from that home would likely have
a negative impact on the child. The child has remained placed in the same
foster home since the removal of the child on September 23, 2014, and the
child remains bonded to the foster family. The foster family is willing to
adopt the child when/if the child becomes available for adoption and is
willing to provide a permanent home for the child. DCS FSW Kalia
Williams and DCS FSW Diana Sutton, along with [Mother] and [Father],
testified that they believed that it was in the best interests of the child for
the Respondents’ rights to be terminated so that the child could be adopted
into the foster home.
Father timely appealed to this Court.
Discussion
Though not stated exactly as such, Father raises the following three issues on
appeal: 1) whether the Juvenile Court erred in finding the ground of substantial
noncompliance with the permanency plan; 2) whether the Juvenile Court erred in finding
the ground of willful failure to visit; and, 3) whether the Juvenile Court erred in finding
the ground of wanton disregard. Although not raised by Father, we also must consider
whether termination of Father’s parental rights is in the Child’s best interest.
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.1 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
1
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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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
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
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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 grounds2 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
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,3 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
2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
3
Tenn. Code Ann. § 36-1-113(i).
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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
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.
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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;
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(1)-(2) (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
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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(1)(A)(iv) (2014 & Supp. 2016).4
We first address whether the Juvenile Court erred in finding the ground of
substantial noncompliance with the permanency plan. Father states on appeal that the
“final Plan offered at trial was dated March 17, 2016, was signed by the Father, and
includes a Statement of Responsibilities, but was never ratified by any Court.” Father
also argues that, considering Father’s mental health problems, there was insufficient time
of only three months between the creation of the final permanency plan and the filing of
the petition. For its part, DCS concedes this ground and does not defend it on appeal.
Our review of the evidence in the record on appeal reflects that the evidence is not clear
and convincing so as to support establishing this ground for termination. We, therefore,
reverse the Juvenile Court’s finding of the ground for termination of substantial
noncompliance with the permanency plan.
We next address whether the Juvenile Court erred in finding the ground of willful
failure to visit. Father argues that his pre-incarceration failure to visit the Child cannot be
regarded as willful because he was barred by DCS from visiting the Child until he
established himself as legal father of the Child. Father also argues that “[d]espite the
FSW’s testimony that Father claimed to have been held against his will by family during
the relative time period, and the FSW’s description of Father’s paranoid state . . . the
Department offered no evidence that Father was mentally well enough to present himself
to be tested.” DCS, on the other hand, argues that Father’s failure to visit actually was
the result of his deliberate choice to disappear in order to avoid facing justice on criminal
charges. This Court has discussed willfulness as follows:
Failure to visit or support a child is “willful” when a person is aware
of his or her duty to visit or support, has the capacity to do so, makes no
4
Effective July 1, 2016, Tenn. Code Ann. § 36-1-102(1)(A)(iv) was amended to alter the manner by
which the four month period is calculated. The petition seeking to terminate parental rights in this case
was filed on June 24, 2016. DCS contends that the July 2016 amendments are inapplicable. For reasons
we will discuss, our holding on this ground does not hinge on whether the July 2016 amendments apply
here.
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attempt to do so, and has no justifiable excuse for not doing so. Failure to
visit or to support is not excused by another person’s conduct unless the
conduct actually prevents the person with the obligation from performing
his or her duty, or amounts to a significant restraint of or interference with
the parent’s efforts to support or develop a relationship with the child.
In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (citations and footnotes
omitted).
Establishing Father’s willful intent not to visit is necessary for this ground. While
Father’s alleged excuses do indeed appear poor, there is insufficient evidence in the
record upon which to make a clear and convincing determination as to Father’s intent not
to visit. As discussed, the evidence in the record on this issue of willful intent shows, at
best, only various equally possible reasons for Father’s failure to visit but not all of these
possible reasons rise to the level of a willful failure to visit. This is so whether the
aforementioned July 2016 statutory amendments are applicable or not as we find
independent grounds for reversal. We, therefore, reverse the Juvenile Court in its finding
the ground for termination of willful failure to visit.
We next address whether the Juvenile Court erred in finding the ground of wanton
disregard. Father argues that there is no nexus between Father’s alleged assault of
Mother and the conduct which ultimately saw Father incarcerated. That, however, is not
dispositive of this issue. This Court has stated:
An incarcerated or recently incarcerated parent can be found guilty of
abandonment only if the court finds, by clear and convincing evidence, that
the parent’s pre-incarceration conduct displayed a wanton disregard for the
welfare of the child. Thus, the parent’s incarceration serves only as a
triggering mechanism that allows the court to take a closer look at the
child’s situation to determine whether the parental behavior that resulted in
incarceration is part of a broader pattern of conduct that renders the parent
unfit or poses a risk of substantial harm to the welfare of the child
In re Audrey S., 182 S.W.3d at 866.
We have stated regarding violence against pregnant mothers: “There can be no
doubt that a violent physical attack on the mother of an unborn child amounts to wanton
disregard for that child’s welfare for several reasons (danger to the child and danger to
the mother) and may support the termination of the attacker’s parental rights.” In re
T.M.H., No. M2008-02427-COA-R3-PT, 2009 WL 1871873, at *7 (Tenn. Ct. App. June
29, 2009), Rule 11 appl. perm. appeal denied Sept. 18, 2009. Mother testified to the
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abuse perpetrated by Father upon her while she was pregnant with the Child. The
Juvenile Court credited Mother’s testimony. The abuse described by Mother was of an
especially cruel nature and directly imperiled the Child. The evidence does not
preponderate against any of the Juvenile Court’s findings relevant to this issue. We find
and hold, as did the Juvenile Court, that the ground of wanton disregard is established by
the standard of clear and convincing evidence.
Although not raised by Father, the final issue we address is whether the Juvenile
Court erred in finding that it is in the Child’s best interest for Father’s parental rights to
be terminated. As already set out in this Opinion, the Juvenile Court made findings with
respect to Tenn. Code Ann. § 36-1-113(i), and the evidence does not preponderate against
these findings. As recounted above, Father’s acts of violence and criminal behavior have
imperiled the Child already. The Child is in a suitable placement and return to Father
would be contrary to the Child’s best interest. We find and hold, as did the Juvenile
Court, that the evidence is clear and convincing that termination of Father’s parental
rights is in the Child’s best interest.
To conclude, we reverse the grounds of substantial noncompliance with the
permanency plan and willful failure to visit. We affirm the ground of wanton disregard.
We affirm further that termination of Father’s parental rights is in the Child’s best
interest.
Conclusion
The judgment of the Juvenile Court is affirmed, in part, and reversed, in part, and,
therefore, Father’s parental rights are terminated. This cause is remanded for collection
of the costs below. The costs on appeal are assessed against the Appellant, George C.,
and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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