In Re Martavious B.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2015
IN RE MARTAVIOUS B. ET AL.
Appeal from the Juvenile Court for Montgomery County
Nos. 14JV1279, 14JV1280, 14JV1281, 14JV3466, 14JV3467, 14JV3468
Timothy K. Barnes, Judge
No. M2015-01144-COA-R3-PT – Filed December 30, 2015
This appeal arises from the termination of Father’s parental rights on two grounds, severe
child abuse and persistence of conditions, and the finding that termination of his parental
rights was in the best interests of his children. Father appeals the trial court’s findings of
persistence of conditions and that it was in the best interests of the children to terminate
his parental rights; however, Father does not appeal the trial court’s finding of severe
child abuse. Because Father did not appeal the ground of severe child abuse, the trial
court’s finding on that ground is final. Only one statutory ground need be found for
termination; therefore, the dispositive issue on appeal is whether the trial court erred in
finding that it was in the best interests of the children to terminate Father’s parental
rights. The evidence in the record clearly and convincingly established that it was in the
best interests of the children to terminate Father’s parental rights. Accordingly, we affirm
the termination of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and KENNY W. ARMSTRONG, JJ., joined.
Brian E. Price, Clarksville, Tennessee, for the appellant, Martavious B.
Herbert H. Slatery, III, Attorney General and Reporter; Rachel Erin Buckley, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
The three minor children who are the subject of these proceedings are the children
of Martavious B. (“Father”)1 and Sherrita M. (“Mother”). The Department of Children’s
Services of Tennessee (“the Department”) first became involved with this family on
December 12, 2011, when it received a referral that the minor daughter, Amiya, had been
sexually abused by Father when she was seven years old. By this time the parents were
separated2 and the Department left the children in Mother’s sole custody with instructions
for Mother to supervise any and all contact between the children and Father.
On July 19, 2013, the Department received a referral that Mother had passed away
on July 14, 2013, and the children were living with Father, who had removed the children
from Mother’s residence immediately following her death. On July 22, 2013, the
Department entered into an Immediate Protection Agreement with Father, by which the
children would reside with their stepmother, Brittany L-B., and Father would only have
supervised contact with the children.
On July 26, 2013, the Department filed a petition for dependency and neglect and
for court ordered services. Following a preliminary hearing, the juvenile court found the
children were dependent and neglected, made the Immediate Protection Agreement an
order of the court, and ordered Father to complete a psychosexual evaluation.
The children were removed into state custody on September 13, 2013, when the
Department received a report that Father was violating the court order. At the
adjudicatory hearing on October 22, 2013, at which Father was represented by counsel,
Father stipulated that the children were dependent and neglected. Further, based on
Father’s stipulation of the sex abuse allegations in the petition, the court found the
children were victims of severe abuse pursuant to Tenn. Code Ann. § 37-1-129(a)(2).
Following a review hearing on December 10, 2013, and upon motion of the
Department, the Department was relieved of the duty to exert reasonable efforts to
reunify the children with Father. Further, the court ordered that there be no contact
between Father and the children.
Thereafter, the Department filed the petition to terminate Father’s parental rights
on the grounds of severe child abuse and persistence of conditions. The trial was held on
May 28, 2015. Maria Dabu, a Family Service Worker for the Department, testified that
1
This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
2
The parents separated in 2008 at which time Mother moved to North Carolina with the children.
They returned to Tennessee in 2011. Thereafter, Father had visitation with the children.
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she had been assigned the case since the children entered state custody. She testified that
Father had not completed a psychosexual evaluation or participated in parenting classes
as required. She also stated that Father was required to see a psychiatrist for additional
services, that Father made one appointment at Centerstone,3 he appeared for his
appointment, but left before seeing a psychiatrist. She also explained that she had no
involvement with Father after the Department was relieved of making reasonable
reunification efforts.
Father testified that he made an appointment with Dr. Hebda, a psychologist, to
complete the psychological assessment and Father attended one session. Dr. Hebda
diagnosed him as having Post Traumatic Stress Disorder and attention deficit disorder,
for which he prescribed Adderall and therapy at Centerstone. Father stated that he made
one appointment at Centerstone and that he appeared for his appointment, but left without
seeing anyone after waiting for over an hour. He never returned. As for the parenting
classes, Father stated that he did not know how to go about completing the classes. Father
testified that he began working construction earning $15 an hour the week before trial but
prior to that he was unemployed and had no legal means of income.
The children’s stepmother testified that Father provided all necessary support for
the children before they were placed in state custody, that she did not have any concerns
about his parenting, and she often saw Father hugging and kissing the children.
Father’s grandmother testified that Father was actively involved in the children’s
lives before they were removed. She also stated that she often witnessed his interaction
with the children, and that she had no concerns about Father being around the children.
She said Father took the children to religious services and that it would be in the
children’s best interest for Father to remain in the children’s lives.
At the conclusion of the trial, the court found that the Department had proven two
grounds for termination of Father’s parental rights, severe child abuse and persistence of
conditions, and that termination was in the children’s best interests. This appeal followed.
ANALYSIS
Parents have a fundamental right to the care, custody and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.
1993). This right is superior to the claims of other persons and the government, yet it is
not absolute. In re Heaven L.F., 311 S.W.3d 435, 438 (Tenn. Ct. App. 2010); In re S.L.A.,
223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).
3
Centerstone is a facility which provides a broad-spectrum of mental health and family services.
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Parental rights may be terminated only where a statutorily defined ground exists.
In re Heaven L.F., 311 S.W.3d at 438; Tenn. Code Ann. § 36-1-113(c)(1). The petitioner
has the burden of proving that a statutory ground for termination exists, such as
abandonment or failing to remedy persistent conditions that led to the removal of the
child. In re Heaven L.F., 311 S.W.3d at 438; Tenn. Code Ann. § 36-1-113(c)(1). Only
one ground need be proved, so long as that ground is proved by clear and convincing
evidence. In re Heaven L.F., 311 S.W.3d at 438 (citing In re D.L.B., 118 S.W.3d 360,
367 (Tenn. 2003)). In addition to proving one of the grounds for termination, the
petitioner must prove that termination of parental rights is in the child’s best interest. Id.;
Tenn. Code Ann. § 36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In
re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000) (holding a court may terminate
a parent’s parental rights if it finds by clear and convincing evidence that one of the
statutory grounds for termination of parental rights has been established and that the
termination of such rights is in the best interests of the child). Therefore, a court may
terminate a person’s parental rights if (1) the existence of at least one statutory ground is
proved by clear and convincing evidence and (2) it is clearly and convincingly
established that termination of the parent’s rights is in the best interest of the child. Tenn.
Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007);
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Whether a statutory ground has been proved by the requisite standard of evidence
is a question of law to be reviewed de novo with no presumption of correctness. In re
Heaven L.F., 311 S.W.3d at 438; In re Adoption of A.M.H., 215 S.W.3d at 810.
Here, the juvenile court found two statutory grounds for terminating Father’s
parental rights: (1) severe child abuse;4 and (2) persistent conditions.5 Father appeals the
4
Severe child abuse is one of the grounds identified in Tenn. Code Ann. § 36-1-113 for
termination of parental rights. The statute reads in pertinent part:
(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; . . .
Tenn. Code Ann. § 36-1-113(g)(4). The statute goes on to identify the ground of severe child sexual abuse
as follows:
The parent has been found to have committed severe child sexual abuse under any prior
order of a criminal court; (ii) For the purposes of this section, “severe child sexual abuse”
means the parent is convicted of any of the following offenses towards a child:
(continued…)
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trial court’s decision on only one of the two statutory grounds, leaving the court’s finding
of severe child abuse unchallenged on appeal. Because Father did not appeal the severe
child abuse ground, the Department contends the trial court’s finding on this ground is
final, and this court need not examine the other ground for termination, only whether
termination of Father’s parental rights is in the children’s best interests.
I. GROUNDS FOR TERMINATION
A court may terminate a person’s parental rights if the existence of at least one
statutory ground is proved and that termination of the parent’s rights is in the best interest
of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at
810; In re Valentine, 79 S.W.3d at 546. Father has not challenged the ground of severe
child abuse in this appeal; therefore, one statutory ground for termination has been
established. In re Heaven L.F., 311 S.W.3d at 440; In re D.L.B., 118 S.W.3d at 367.
Whether this court must examine the additional grounds for termination when a
parent fails to challenge all grounds for termination has been addressed in several recent
cases. In In re Carrington H., No. M2014-00453-COA-R3-PT, 2014 WL 5390572 (Tenn.
Ct. App. Oct. 21, 2014), perm. app. granted, (Tenn. Jan. 28, 2015), we provided an in
depth discussion of this specific issue. As we explained, courts generally address only the
(a) Aggravated rape, pursuant to § 39-13-502; (b) Aggravated sexual
battery, pursuant to § 39-13-504; (c) Aggravated sexual exploitation of a
minor, pursuant to § 39-17-1004; (d) Especially aggravated sexual
exploitation of a minor, pursuant to § 39-17-1005; (e) Incest, pursuant to
§ 39-15-302; (f) Rape, pursuant to § 39-13-503; or (g) Rape of a child,
pursuant to § 39-13-522; . . .
Tenn. Code Ann. § 36-1-113(11)(A)(ii).
5
Persistence of conditions is an additional ground identified in Tenn. Code Ann. § 36-1-113 for
termination of parental rights. The statute reads in pertinent part:
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; . . .
Tenn. Code Ann. § 36-1-113(g)(3).
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issues raised by the parties. Id. at *4 (citing Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn.
2012); Tenn. R. App. P. 13(b)). We further noted that:
Party control over issue presentation is considered a defining characteristic
of the American adversarial system. See U.S. v. Burke, 504 U.S. 229, 246,
112 S. Ct. 1867, 119 L. Ed. 2d 34 (1992) (Scalia, J., dissenting). However,
courts may sometimes engage in a sua sponte review of issues not raised by
the parties on appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121, 96
S. Ct. 2868, 49 L. Ed. 2d 826 (1976); Blumberg Assocs. Worldwide, Inc. v.
Brown & Brown of Conn., 311 Conn. 123, 84 A.3d 840, 855-69 (Conn.
2014); Bell v. Todd, 206 S.W.3d 86, 90-91 (Tenn. Ct. App. 2005);
Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct.
App. 2000). For example, our courts have considered justiciability issues
even when parties have not presented such issues for review. See, e.g.,
Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988)
(jurisdiction); Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)
(standing); Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014)
(mootness). In addition to justiciability questions, Tennessee Rule of
Appellate Procedure 13(b) recognizes that appellate courts may review
issues not raised by the parties in certain circumstances:
Review generally will extend only to those issues presented
for review. The appellate court shall also consider whether
the trial and appellate court have jurisdiction over the subject
matter, whether or not presented for review, and may in its
discretion consider other issues in order, among other
reasons: (1) to prevent needless litigation; (2) to prevent
injury to the interests of the public; and (3) to prevent
prejudice to the judicial process.
Tenn. R. App. P. 13(b). Despite possessing the discretion to review an issue
not raised by the parties on appeal, “this discretion [should] be sparingly
exercised.” Tenn. R. App. P. 13(b) cmt.
Yet, in the context of parental termination cases, on occasion we have
reviewed all the grounds relied upon by the trial court to terminate parental
rights, even if the parent did not appeal every ground. See, e.g., In re Anya
G., No. E2013-02595-COA-R3-PT, 2014 WL 4233244 (Tenn. Ct. App.
Aug. 27, 2014) (reviewing the ground of abandonment, although the
mother did not appeal that ground); In re Justin K., No. M2012-01779-
COA-R3-PT, 2013 WL 1282009 (Tenn. Ct. App. Mar. 27, 2013)
(examining whether termination was in the children’s best interests due to
the “gravity of the determination,” even though the parent did not brief the
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issue); In re L.M. W., 275 S.W.3d 843 (Tenn. Ct. App. 2008) (discussing
two grounds for termination despite Father’s concession in his brief that the
grounds were established); cf. In re L.L.F., No. M2007-01656-COA-R3-
PT, 2008 WL 555700 (Tenn. Ct. App. Feb. 29, 2008) (reviewing the
statutory ground the mother appealed, but acknowledging that the mother
did not appeal all grounds for termination). We are also mindful of our
Supreme Court’s instruction that we should review every ground relied
upon by the trial court to terminate parental rights in order to prevent
“unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010).
However, our Supreme Court’s direction in In re Angela E., 303 S.W.3d
240 (Tenn. 2010), does not mandate review of every ground for termination
of parental rights relied upon by the trial court irrespective of whether an
appeal is taken from every ground. See, e.g., In re Kyla P., No. M2013-
02205-COA-R3-PT, 2014 WL 4217412, at *3 (Tenn. Ct. App. Aug. 26,
2014) (addressing only whether termination was in the child’s best interests
where the father did not appeal any statutory grounds); In re A.T.S., No.
M2004-01904-COA-R3-PT, 2005 WL 229905, at *3 (Tenn. Ct. App. Jan.
28, 2005) (examining only whether termination was in the child’s best
interests where the mother did not appeal the statutory ground). The danger
of “unnecessary remand” from the Supreme Court is largely eliminated
where the issue cannot be raised by the parties in any future appeal. See
State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000) (declining to examine a
claim because it was not raised on direct appeal). In this situation, the trial
court’s determination that one statutory ground for termination is satisfied
is final. Therefore, review of the alternative grounds becomes unnecessary
because the outcome of such a review would not change the presence of at
least one ground for terminating parental rights. Declining to undertake
such a review honors the principle that courts review only those issues
raised by parties and is in keeping with the requirements of Rule 13(b).
Here, the trial court’s finding of Mother’s incompetency is final because
Mother failed to raise this issue on appeal. Forbess v. Forbess, 370 S.W.3d
347, 355 (Tenn. Ct. App. 2011) (citing Newcomb v. Kohler Co., 222
S.W.3d 368, 401 (Tenn. Ct. App. 2006)); In re Alexis L., 2014 WL
1778261, at *2. Because only one statutory ground is necessary for
termination, we move directly to whether termination of Mother’s parental
rights is in the child’s best interests.
In re Carrington H., 2014 WL 5390572, at *4-5.
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Under the reasoning stated above, only one statutory ground is necessary for
termination of Father’s parental rights. Therefore, because Father has not challenged the
ground of severe child abuse in this appeal, it is not necessary for this court to determine
whether the second ground of persistent conditions was established.6
II. BEST INTERESTS OF THE CHILDREN
If one statutory ground for termination is proved by clear and convincing
evidence, a parent’s rights may be terminated if it is also determined that termination of
the parent’s rights is in the best interests of the children. In re Heaven L.F., 311 S.W.3d
at 440; In re D.L.B., 118 S.W.3d at 367. In this case, Father insists the evidence did not
clearly and convincingly demonstrate that it was in the children’s best interests to
terminate his parental rights.
The best interests of the children are to be determined from the perspective of the
children rather than the parent; thus, we will focus our attention on what is best for the
children, not Father. In re Heaven L.F., 311 S.W.3d at 441; In re Marr, 194 S.W.3d 490,
499 (Tenn. Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Nine statutory factors are identified for the court to consider in making a best interest
analysis; however, not every statutory factor applies to every case. In re Carrington H.,
2014 WL 5390572, at *5 (citing In re William T. H., No. M2013-00448-COA-R3-PT,
2014 WL 644730, at *4 (Tenn. Ct. App. Feb. 18, 2014)).
One of the statutory factors to be considered is whether the parent has shown
physical or sexual abuse toward the child, or another child or adult in the family or
household. See Tenn. Code Ann. § 36-1-113(i)(6). Most significant to this factor is that in
October 2013, with the advice of counsel, Father stipulated that he sexually abused
Amiya and, in November 2014, the trial court entered the order finding that the children
were victims of severe abuse by Father. This order has never been challenged.
In relation to the foregoing factor, another statutory factor to be considered is
whether the parent’s home is healthy and safe and whether there is criminal activity in the
home. See Tenn. Code Ann. § 36-1-113(i)(7). The trial court found that, as recently as the
week prior to trial, Father was again incarcerated and that he had been incarcerated for at
least 60 days since the children were placed in foster care, that further charges are
pending that may result in additional incarceration, and that he admitted to selling illegal
drugs as a means to support his children when they resided with him.
6
Although we are not required to examine whether a second ground for termination has been
established, we have reviewed the record and conclude that the Department presented evidence that
clearly and convincingly established the ground of persistent conditions under Tenn. Code Ann. § 36-1-
113. Therefore, we affirm the trial court’s ruling on the ground of persistent conditions.
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Whether the parent 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 is another statutory factor the trial court considered. See Tenn. Code
Ann. § 36-1-113(i)(1). The trial court determined that Father had “not made any
adjustment of circumstances, conduct or conditions as to make it safe and in the
children’s best interest to return to his care, and that he made very little meaningful effort
to make it safe for the children to return home.” This is fully supported by the record for
Father truly did nothing to remedy the conditions that existed following the removal of
the children.
Additionally, whether the parent or guardian has maintained regular visitation or
other contact with the child is a factor to be considered. See Tenn. Code Ann. § 36-1-
113(i)(3). The trial court found that Father “failed to maintain regular visitation with the
children . . . when he was allowed to do so,” which was based, in part, on the testimony
of Ms. Dabu. She stated that she called Father three or four times a month for the first
three months the children were in foster care to arrange visits, that Father scheduled only
one visit during these months, and Father then failed to participate in the visit.
Significantly, Father did not contest these facts. For these and other reasons, the trial
court concluded that Father failed to visit his children.
Another statutory factor that may be considered is the effect a change of caretakers
and physical environment is likely to have on the child’s emotional, psychological and
medical condition. See Tenn. Code Ann. § 36-1-113(i)(5). The trial court found that the
children are in a safe and loving foster home, they are happy, well adjusted, their needs
are being met, and it has been over a year since they have asked for Father.
Based on these and other findings, the court determined that termination of
Father’s parental rights was in the children’s best interests.
Here, the material facts relevant to the children’s best interests are not in dispute.
We conclude that these facts clearly and convincingly support the findings of the trial
court and the conclusion that termination of Father’s parental rights is in the children’s
best interests.
IN CONCLUSION
To terminate the parental rights of a parent, a trial court must determine by clear
and convincing evidence that at least one of the statutory grounds for termination exists
and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Heaven L.F., 311 S.W.3d at 440; In re Valentine, 79 S.W.3d at 546. In this case, both
have been established by clear and convincing evidence. Therefore, we affirm the
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termination of Father’s parental rights, and this matter is remanded with costs of appeal
assessed against Father.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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