In Re: Kierra B.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 6, 2013
IN RE: KIERRA B., ET AL.
Appeal from the Juvenile Court for Sullivan County (Kingsport)
No. J37321 Mark Toohey, Judge
No. E2012-02539-COA-R3-PT-FILED-JANUARY 14, 2014
The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile
Court for Sullivan County (“the Juvenile Court”) to terminate the parental rights of Amber
B. (“Mother”) to the minor children Jayden B. and Kierra B. (“the Children,” collectively,
or, “Jayden” and “Kierra” individually).1 DCS also sought to terminate the parental rights
of Miguel C. (“Father”) to Kierra.2 After a trial, the Juvenile Court entered its order finding
and holding, inter alia, that clear and convincing evidence was proven that grounds existed
to terminate Mother’s parental rights to the Children pursuant to Tenn. Code Ann. §§ 36-1-
113 (g)(2) and (g)(3), and that clear and convincing evidence was proven that it was in the
Children’s best interest for Mother’s parental rights to be terminated. The Juvenile Court
also found and held that clear and convincing evidence was proven that grounds existed to
terminate Father’s parental rights to Kierra pursuant to Tenn. Code Ann. § 36-1-113 (g)(1)
and Tenn. Code Ann. § 36-1-102 (1)(A)(iv), and that clear and convincing evidence was
proven that it was in Kierra’s best interest for Father’s parental rights to be terminated.
Mother and Father appeal. Apart from certain grounds of abandonment pertaining to Father
which we reverse for lack of adequate evidence, we affirm the judgment of the Juvenile
Court terminating Mother’s parental rights to the Children and Father’s parental rights to
Kierra.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed, in
Part, and, Reversed, in Part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.
1
Jayden was born in 2001 and Kierra was born in 2003.
2
Father is the father of Kierra but not of Jayden.
Marsha M. Arnurius, Johnson City, Tennessee, for the appellant, Amber B.
Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Miguel C.
Robert E. Cooper, Jr., Attorney General and Reporter, and, Alexander S. Rieger, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
Polly A. Peterson, Guardian Ad Litem.
OPINION
Background
In June 2011, DCS filed a petition to terminate Mother’s parental rights to the
Children and to terminate Father’s parental rights to Kierra. Mother and Father filed
answers. In June 2012, DCS filed an amended petition to include the grounds of
abandonment by incarcerated parent with respect to Father. This matter was tried on multiple
dates over the course of several months in 2012.
In April 2012, Travis Sherffey (“Sherffey”), the Children’s initial case
manager, testified. Sherffey stated that the Children were brought into custody in February
2008 because, among other reasons, Mother tested positive for cocaine, marijuana and
opiates, and lacked adequate housing. A trial home placement was attempted in December
2008 but was unsuccessful because Mother continued smoking marijuana. Permanency plans
were entered requiring Mother to address her mental health issues; avoid people with
substance abuse issues; perform drug screens; maintain housing for the Children; obtain an
income; and resolve her criminal issues. Additional requirements of complying with
medication management and avoiding contact with people with criminal histories also were
included.
Sherffey testified to Mother’s history of drug abuse. According to Sherffey,
Mother smoked marijuana in jail in December 2008. At other times, Mother did not properly
account for her medication. Sherffey stated that there were irregularities in the accounting
of Mother’s medication such as there sometimes being too many or too few pills. Mother
had sought prescription drugs from a host of facilities despite having a primary care
physician. Sherffey also testified that Mother had undergone periods of homelessness.
Sherffey acknowledged that Mother had a good relationship with the Children.
Mother has engaged in visitation and cooked for the Children. Mother, however, also has
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engaged in destructive behaviors. Sherffey testified that Mother attempted suicide by slicing
her wrists in front of the Children in November 2007. Sherffey stated that Mother has
continued to threaten suicide at times.
Donna Dingus (“Dingus”), the DCS case manager for the Children who took
over in May 2011, testified. Dingus testified that Mother had been evicted from her trailer
for failure to pay rent. Continuing her testimony, Dingus stated that Mother had a positive
drug screen in late 2011. Dingus testified to criminal charges Mother faced for theft.
According to Dingus, Mother’s status has not improved.
In May 2012, Christy Woods (“Woods”), a CASA case worker assigned to the
Children, testified. Woods stated that Mother did not properly account for her pills. Woods
also testified that Mother made comments hinting at suicide.
In September 2012, Dingus testified once again, this time in regards to Father.
Father, Kierra’s father, was incarcerated at that time. Father pled guilty to possession of
cocaine with intent to sell within 1,000 feet of a school, possession of drug paraphernalia,
evidence tampering, sale and distribution of cocaine within 1,000 feet of a school, and
delivery of cocaine within 1,000 feet of a school. These offenses occurred on two distinct
dates in December 2008. Father is serving an eight year sentence. Father is eligible for
release in 2016.
Dingus acknowledged that Father had paid child support to Mother from 2005
through February 2008. According to reports known to Dingus, approximately six months
to a year before Kierra was brought into custody, Mother forbade Father from seeing Kierra
because he was dealing drugs.
In November 2012, the Juvenile Court entered an order finding and holding,
inter alia, that clear and convincing evidence was proven that grounds existed to terminate
Mother’s parental rights to the Children pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(2) and
(g)(3), and that clear and convincing evidence was proven that it was in the Children’s best
interest for Mother’s parental rights to be terminated. The Juvenile Court also found and
held that clear and convincing evidence was proven that grounds existed to terminate
Father’s parental rights to Kierra pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) and Tenn.
Code Ann. § 36-1-102 (1)(A)(iv), and that clear and convincing evidence was proven that
it was in Kierra’s best interest for Father’s parental rights to be terminated.3 We reproduce
certain key factual findings from the order:
3
The parental rights of Jayden’s possible father were terminated as well, but that is not at issue on
appeal.
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[Mother - - substantial noncompliance with permanency plan]
After the children came into state custody, DCS created permanency
plans for them. The permanency plans listed a statement of responsibilities
that the Respondent [Mother] needed to satisfy before the children could safely
be returned home. The plans gave [Mother] ample time to satisfy those
requirements. The plans required [Mother] to: a. Comply with medication
management, therapy, and case management at Frontier Health; b. Take
medication only as prescribed; c. Destroy any unused portion of medication
when prescriptions change; d. Notify DCS/CASA when prescribed new
medication; e. Allow DCS/CASA to conduct pill counts; f. Maintain safe
adequate housing for herself and children; g. Not allow persons with substance
abuse problems, criminal history, history of child abuse, or history of violence
in the home; h. If inappropriate individuals come to the home she will contact
law enforcement to have them leave.
***
The Court finds that during the times that [Mother] was being
supervised she did pretty well, and completed a parenting assessment, and
anger management course, and was having therapeutic visitation services; she
was doing so well that in December 2008 DCS was in a position to have a trial
home placement of the children. Prior to beginning the trial home placement
[Mother] was arrested, and while she was in jail she used marijuana. DCS
conducted pill counts of [Mother’s] medication and found that sometimes she
had too many pills while other times she had too few. In October 2009
[Mother] was missing twelve pills. In 2010 [Mother] claimed that she found
100 benzodiazepines in her home that she had forgotten about. [Mother] lied
to DCS about the amount of pills she was prescribed.
***
Throughout the entire custody episode [Mother] has not maintained
stable housing in that: she has been homeless; she was evicted from Chadwick
for unpaid rent; she was evicted from Virgil Ave for unpaid rent after DCS
paid for her first months rent; she was evicted from Ridgecrest for unpaid rent
after a church assisted her with rent; and at one time the children’s foster
parents allowed her to live rent free in a residence they owned and she was
evicted from there as well.
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[Mother] has not substantially complied with her statement of
responsibilities on the permanency plan in that: she has not complied with
medication maintenance; she has not complied with therapy and case
management; she has not taken her medications as prescribed; she has not
destroyed any unused portion of her medications; she has not notified DCS or
CASA when her prescriptions changed; she has not allowed DCS and CASA
to conduct pill counts; she has not maintained safe or adequate housing; she
has not prevented people with criminal histories and/or substance abuse issues
from being in her home; she did not call law enforcement when those persons
were present and instead tried to hide them from DCS.
***
[Mother - - persistent conditions]
These children have been in DCS custody for over four years. DCS
removed the children from their home because of [Mother’s] narcotic abuse,
mental health issues, and unstable living situation. The conditions that led to
the removal still persist in that [Mother] continues to have inaccurate pill
counts, not reporting her prescriptions, not taking medication as prescribed,
and continues to have unstable housing. The only thing that [Mother] has done
with any regularity during the last four years is maintain visitation with her
children.
***
[Father - - abandonment by incarcerated parent]
[Father] was in jail all of the four months just before the amended
petition was filed, serving an eight (8) year sentence for Selling Drugs Within
1000 feet of a School. During that four months before he went to jail, he
willfully failed to visit the child, although he was able to visit, and there was
no court order or any other impediment to visitation. In the same four months
before he went to jail, he willfully failed to make reasonable payments toward
the child’s support, although on August 2nd 2004 he was ordered to pay $233
per month in child support. [Father] knew he was the father of [Kierra], he
knew he had a duty to support and was at one time paying support. [Father]
never filed any type of petition to exercise his parental rights to establish
visitation, or custody. [Father] was so absent from his child’s life that he never
attempted to present himself to DCS or the Court even if he knew the child
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was in DCS custody. The Court finds that during the time between the child
entering DCS custody and the time [Father] was incarcerated on December 29 th
2008 ten months had passed and if he was involved in her life at all he would
have contacted DCS or the Court, or showed some interest in the welfare of his
child, and his lack of concern is the reason that DCS could not look into his
family members as placement. [Father] was located by DCS while in jail on an
eight year sentence so reunification was out of the question for him as the child
was five years old at the time. [Father] has engaged in conduct that exhibits a
wanton disregard for the child’s welfare by: not visiting regularly with the
child prior to DCS custody; showed a lack of interest in the child’s welfare by
not monitoring her well being; being convicted of possession of schedule II
controlled substance for resale within 1000 feet of a school and as a result
becoming incarcerated and being unable to provide for his child or visit with
his child. [Father’s] criminal acts occurred on two separate occasions,
December 16th and 29th 2008 and it is evident to the Court that he has no regard
for the welfare of his child by committing these acts and a reasonable person
could conclude that such behavior can result in incarceration and the ability to
be unable to visit and support your child. [Father’s] repeated criminal acts
further show a wanton disregard for the children in the community by selling
dangerous drugs where school children are likely to be present.
***
[Best interests - - Mother and Father]
The Court finds that the State of Tennessee, Department of Children’s
Services has proven by clear and convincing evidence that termination of
parental rights is in the best interest of the children based upon the following
findings of fact. [Mother] has not made changes in her conduct or
circumstances that would make it safe for the children to go home, in that
[Mother] . . . has not complied with medication maintenance; she has not
complied with therapy and case management; she has not taken her
medications as prescribed; she has not destroyed any unused portion of her
medications; she has not notified DCS or CASA when her prescriptions
changed; she has not allowed DCS and CASA to conduct pill counts; she has
not maintained safe or adequate housing; she has not prevented people with
criminal histories and/or substance abuse issues from being in her home; she
did not call law enforcement when those persons were present and instead tried
to hide them from DCS. [Mother] has not has made lasting changes in her
lifestyle or conduct after reasonable efforts by the state to help, so that lasting
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change does not appear possible, in that the Department has made
overwhelming reasonable efforts to assist [Mother] to cure the reasons the
children came into care and [Mother] has made no efforts to establish a home
or cure the reasons the children were removed, and it does not appear that she
will be able to do so in the foreseeable future. Changing caregivers at this
stage of the children’s lives will [have] a detrimental effect on them because
they are doing well in their current placement and are bonded with the foster
parents, and placing them back into their mother’s care would have a
devastating effect particularly in light of the fact that [Mother] has not changed
her circumstances or conduct.
[Father] . . . [has] not maintained regular visitation with the children,
and [has] not been a part of the children’s lives at all. There is no meaningful
relationship between the children and . . . [Father].
***
In the four months before he went to jail, [Father] willfully failed to
make reasonable payments toward the child’s support, although on August 2 nd
2004 he was ordered to pay $233 per month in child support. [Father] has
shown little or no interest in the welfare of the children, and if the Court
allowed him to remain her legal father it would inhibit her integration into a
safe, permanent, and loving home. [Father] has been incarcerated for four
years and has four more years to serve, he has not been a part of the child’s life
prior to incarceration and will be unable to be a part of her life until he is
released from jail at which time he will have been absent from her life for
twelve years.
(Format modified). Mother and Father appeal the termination of their parental rights to the
Children and Kierra, respectively.
Discussion
Though not stated exactly as such, Mother raises one issue on appeal: whether
the Juvenile Court erred in finding and holding that clear and convincing evidence existed
that it was in the Children’s best interest for Mother’s parental rights to be terminated. Even
though Mother understandably does not dispute the grounds for termination of her parental
rights to the Children on appeal, we will review them anyway. For his part, Father raises two
issues on appeal, which we state as follows: 1) whether the Juvenile Court erred in finding
and holding that clear and convincing evidence existed to terminate Father’s parental rights
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to Kierra pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) and Tenn. Code Ann. § 36-1-102
(1)(A)(iv), and 2) whether the Juvenile Court erred in finding and holding that clear and
convincing evidence existed that it was in Kierra’s best interest for Father’s parental rights
to be terminated.
Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:
This Court must review findings of fact made by the trial court de novo
upon the record “accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise.” Tenn. R.
App. P. 13(d). To terminate parental rights, a trial court must determine by
clear and convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in the child’s best
interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
Ann. § 36-1-113(c)). Upon reviewing a termination of parental rights, this
Court’s duty, then, is to determine whether the trial court’s findings, made
under a clear and convincing standard, are supported by a preponderance of the
evidence.
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).
In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:
It is well established that “parents have a fundamental right to the care,
custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208,
31 L. Ed. 2d 551 (1972)). “However, this right is not absolute and parental
rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” Id. (citing Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based upon a
finding by the court that: (1) the grounds for termination of parental or
guardianship rights have been established by clear and convincing evidence;
and (2) termination of the parent’s or guardian’s rights is in the best interests
of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be
terminated, it must be shown that the parent is unfit or substantial harm to the
child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d
-8-
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.
App. 1998). Similarly, before the court may inquire as to whether termination
of parental rights is in the best interests of the child, the court must first
determine that the grounds for termination have been established by clear and
convincing evidence. Tenn. Code Ann. § 36-1-113(c).
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. 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).
Although Mother does not challenge the grounds found for termination of her
parental rights to the Children, we will address them. The Juvenile Court found and held
that, with respect to Mother, the grounds of substantial noncompliance with permanency plan
and persistent conditions were proven by clear and convincing evidence. The relevant
statutory provisions are as follows:
(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:
***
(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;
(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(s) or guardian(s), 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(s) or guardian(s) in the near future; and
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(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) (Supp. 2013).
The Juvenile Court made detailed findings as to this issue. The evidence in the
record is that Mother has a long and troubled history of drug abuse, mental health issues, and
general instability in her life. Mother has proven unable to substantially comply with the
requirements of her permanency plans, and her problems remained unresolved at the time of
trial. The evidence in the record on appeal does not preponderate against the findings made
by the Juvenile Court by clear and convincing evidence that grounds were proven to
terminate Mother's parental rights to the Children pursuant to Tenn. Code Ann. §§
36–1–113(g)(2) and (g)(3).
We next address whether the Juvenile Court erred in finding and holding that
clear and convincing evidence existed that it was in the Children’s best interest for Mother’s
parental rights to be terminated. The relevant statutory provision is Tenn. Code Ann. § 36-1-
113 (i), which provides:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child pursuant to this part, the court shall consider, but
is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services agencies for
such duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
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(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in
the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or controlled
substance analogues as may render the parent or guardian consistently unable
to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department pursuant to
§ 36-5-101.
Tenn. Code Ann. § 36-1-113 (i) (Supp. 2013).
First, we acknowledge that the record reflects that Mother had a good
relationship with the Children in terms of maintaining visitation. Mother also prepared meals
for the Children. Nevertheless, these few positive facts are dwarfed by Mother’s unfortunate
and persistent problems. As found by the Juvenile Court, the Children have bonded with
their foster parents. In light of this and Mother’s ongoing challenges, the Children’s best
interest would not be served by Mother retaining her parental rights. The evidence in the
record on appeal does not preponderate against the Juvenile Court’s finding made by clear
and convincing evidence that it is in the Children's best interest for Mother's parental rights
to be terminated. We affirm the Juvenile Court’s finding that it is in the best interest of the
Children for Mother’s parental rights to be terminated.
We next address whether the Juvenile Court erred in finding and holding that
clear and convincing evidence existed to terminate Father’s parental rights to Kierra pursuant
to Tenn. Code Ann. § 36-1-113 (g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv). As
pertinent to Father’s appeal, Tenn. Code Ann. § 36-1-113(g)(1) provides:
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(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;
Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2013). In pertinent part, Tenn. Code Ann. § 36-1-
102 provides:
(1)(A) For purposes of terminating the parental or guardian rights of parent(s)
or guardian(s) 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(1)(A)(iv) (2010).
Initially, we must clarify which grounds are at issue. Although this has been
presented as a ground of ‘abandonment by incarcerated parent,’ the relevant statutory section
contains multiple ways of abandonment for termination of parental rights. Parties and courts
must take care not to conflate these grounds.
We first will address abandonment by wanton disregard for the welfare of the
child. The record reflects that on two separate occasions in December 2008, Father
participated in serious criminal behavior. Following conviction for drug-related offenses,
Father now is in the midst of serving an eight year sentence. Father argues on appeal that this
fact alone does not prove the ground of abandonment by wanton disregard. As this Court
stated in In re: Audrey S.: “We have repeatedly held that probation violations, repeated
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incarceration, criminal behavior, substance abuse, and the failure to provide adequate support
or supervision for a child can, alone or in combination, constitute conduct that exhibits a
wanton disregard for the welfare of a child.” In re: Audrey S., 182 S.W.3d 838, 867-68
(Tenn. Ct. App. 2005). While a parent’s criminal behavior does not automatically constitute
wanton disregard for the welfare of a child, it certainly may constitute such wanton disregard
under the appropriate circumstances. Both the severity and frequency of the criminal acts
are factors to be considered in determining whether a parent’s criminal behavior constitutes
wanton disregard for the welfare of a child.
In the instant case, Father’s criminal behavior was serious and detrimental to
his child’s welfare. As a result of Father’s crimes, Father has rendered himself absent from
Kierra’s life for most of her childhood. It also is noteworthy that Father’s acts were
committed on two separate dates. Father’s criminal behavior was, therefore, repeated, and
this repetition served only to increase the jeopardy to Kierra’s welfare.
The evidence in the record on appeal does not preponderate against the findings
made by the Juvenile Court by clear and convincing evidence that grounds were proven to
terminate Father’s parental rights to Kierra pursuant to Tenn. Code Ann. § 36-1-113(g)(1)
and Tenn. Code Ann. § 36-1-102 (1)(A)(iv). We affirm the finding of abandonment by
wanton disregard.
The Juvenile Court also found that Father had willfully failed to visit and
support Kierra and terminated his parental rights on this basis, as well. The Juvenile Court
stated relative to this issue:
During that four months before he went to jail, he willfully failed to visit the
child, although he was able to visit, and there was no court order or any other
impediment to visitation. In the same four months before he went to jail, he
willfully failed to make reasonable payments toward the child’s support,
although on August 2nd 2004 he was ordered to pay $233 per month in child
support. [Father] knew he was the father of [Kierra], he knew he had a duty to
support and was at one time paying support. [Father] never filed any type of
petition to exercise his parental rights to establish visitation, or custody.
[Father] was so absent from his child’s life that he never attempted to present
himself to DCS or the Court even if he knew the child was in DCS custody.
The Court finds that during the time between the child entering DCS custody
and the time [Father] was incarcerated on December 29 th 2008 ten months had
passed and if he was involved in her life at all he would have contacted DCS
or the Court, or showed some interest in the welfare of his child, and his lack
of concern is the reason that DCS could not look into his family members as
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placement. Father was located by DCS while in jail on an eight year sentence
so reunification was out of the question for him as the child was five years old
at the time.
We have discussed ‘willfulness’ in the context of failure to support:
This court has consistently held that the term willfulness as it applies
to a party's failure to support a child must contain the element of intent. In re
Swanson, 2 S.W.3d 180, 188–89 (Tenn. 1999). Indeed, “defining
abandonment as the mere non-payment of support [is] unconstitutional because
this language creates an irrebuttable presumption of abandonment, irrespective
of intent.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003) (citing In re
Swanson, 2 S.W.3d at 188). The element of intent utilized in termination
proceedings “does not require the same standard of culpability as is required
by the penal code.” In re Audry S., 182 S.W.3d 838, 863 (Tenn. Ct. App.
2005). “Willful conduct consists of acts or failures to act that are intentional
or voluntary rather than accidental or inadvertent.” Id. “[A] person acts
‘willfully’ if he or she is a free agent, knows what he or she is doing, and
intends to do what he or she is doing.” Id. at 863–64. Additionally, “
‘[f]ailure to support a child is ‘willful’ when a person is aware of his or her
duty to support, has the capacity to provide the support, makes no attempt to
provide the support, and has no justifiable excuse for not providing the
support.' ” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005) (quoting
In re Adoption of T.A.M., No. M2003–02247–COA–R3–PT, 2004 WL
1085228, at *4 (Tenn. Ct. App. May 12, 2004)).
In re: Dylan H., No. E2010-01953-COA-R3-PT, 2011 WL 6310465, at *6 (Tenn. Ct. App.
Dec. 16, 2011), no appl. perm. appeal filed. Respectfully, the Juvenile Court’s findings
relative to these issues of “willful” conduct are conclusory and without sufficient specific
findings relative to the “willfulness” of Father’s failure to visit or support. It is not enough
that a parent failed to visit or support in this context. Rather, there must be clear and
convincing evidence revealing willful conduct. We are of the view that, in Father’s case, the
limited evidence does not prove the requisite intent for the grounds of abandonment by
willful failure to support or visit. Therefore, we reverse the Juvenile Court on these grounds.
However, as we affirm the Juvenile Court as to the ground of abandonment by wanton
disregard, and, as only one ground is required for termination of parental rights, we move on
to address Kierra’s best interest.
The Juvenile Court made findings relative to this issue of Kierra’s best interest
which, apart from any reliance on willful failure to visit or support as discussed above, we
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find to be amply supported by the evidence. As a result of his repeated acts of serious
criminal behavior, Father will be in no position to parent Kierra any time in the near future.
Kierra needs and deserves stability.
The evidence in the record on appeal does not preponderate against the
Juvenile Court’s finding made by clear and convincing evidence that it is in Kierra's best
interest for Father's parental rights to be terminated. We affirm the Juvenile Court’s finding
that it is in the best interest of Kierra for Father’s parental rights to be terminated.
In summary, we affirm the judgment of the Juvenile Court in its entirety with
respect to Mother and the termination of her parental rights to the Children. We reverse the
Juvenile Court as to its findings of willful failure to support and visit as grounds for
terminating Father’s parental rights. We, however, affirm the Juvenile Court in its
termination of the parental rights of Father to Kierra on the basis of abandonment by wanton
disregard. We find and hold that it is in the best interest of the Children for Mother’s
parental rights to be terminated. We also find and hold that it is in the best interest of Kierra
for Father’s parental rights to be terminated.
Conclusion
We affirm the judgment of the Juvenile Court terminating Amber B.’s parental
rights to Jayden B. and Kierra B. and Miguel C.’s parental rights to Kierra B., and remand
this cause to the Juvenile Court for collection of the costs below. The costs on appeal are
assessed against the Appellants, Amber B. and Miguel C., and their surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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