In Re Charles A.

03/24/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 1, 2017
IN RE CHARLES A.
Appeal from the Circuit Court for McMinn County
No. 2015-CV-158 Lawrence Howard Puckett, Judge
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No. E2016-01757-COA-R3-PT
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This is a termination of parental rights case. Mother appeals the termination of her
parental rights to the minor child on the grounds of abandonment and persistence of
conditions. Because the record does not contain an adjudicatory order of dependency and
neglect, we reverse the ground of persistence of conditions. We affirm the termination of
Mother’s parental rights on the ground of abandonment and on the trial court’s finding
that termination of Mother’s parental rights is in the child’s best interest. Reversed in
part, affirmed in part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed in Part, Affirmed in Part, and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Kathleen Hodge, Athens, Tennessee, for the appellant, Olivia B.
Donald (Trey) Winder, III, Athens, Tennessee, for the appellees, Randy M. and Dawana
M.
OPINION
I. Background
The minor child at issue in this case, Charles A. (d.o.b. May 2010),1 was born to
Appellant Olivia B. (“Mother”) and Jeffrey A. (“Father”).2 Randy M. and Dawana M.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as to
protect their identities.
2
Father voluntarily surrendered his parental rights and is not a party to this appeal.
(together, “Appellees”) are Charles A.’s paternal aunt and uncle. Charles A. lived with
Mother for the first year of his life. By May of 2011, however, the child was living with
Appellees. In January of 2013, Mother regained custody, but Appellees remained deeply
involved in the life of the child including the granting of visitation privileges.3
In the Fall of 2014, Appellees petitioned the Juvenile Court of McMinn County for
temporary custody of Charles A. On October 6, 2014 the juvenile court issued a
“Temporary Order,” finding that Charles A. was dependent and neglected and,
specifically, that Charles A. was “in need of a custodian due to the mother being
arrest[ed] for DUI and presently incarcerated.” The record shows that Mother was
arrested for DUI while Charles A. was in the car. Based on Mother’s arrest and
incarceration, the trial court granted temporary custody of Charles A. to Appellees.
Charles A. has lived with Appellees since that time.
In April of 2015, Mother was found guilty of DUI in McMinn County. On May 7,
2015, Appellees filed a petition to terminate Mother and Father’s parental rights on
grounds of: (1) abandonment by willful failure to visit and support; and (2) persistence of
the conditions that led to the child’s removal from Mother’s home. The trial court found
that Mother was indigent and appointed an attorney to represent her; the trial court also
appointed a guardian ad litem for Charles A. On November 13, 2015, Mother filed a
response to Appellees’ petition, wherein she demanded strict proof of abandonment and
denied any drug abuse.
The trial court heard the petition to terminate parental rights on May 23, 2016. By
order of July 15, 2016 and amended order of July 21, 2016, the trial court terminated
Mother’s parental rights to Charles A. on grounds of abandonment by willful failure to
support and visit and persistence of the conditions that led to Charles A.’s removal from
Mother’s home. The trial court also found that termination of Mother’s parental rights is
in Charles A.’s best interest. Mother appeals.
II. Issues
Mother raises five issues for review, which we state as follows:
1. Did the trial court err in finding that Appellees had proven, by clear and
convincing evidence, the ground of persistence of the conditions that led to
the child’s removal from Mother’s home.
2. Did the trial court err in finding that Appellees had proven, by clear and
3
The record does not contain any documentation concerning the early custody arrangements. This
information is taken from the parties’ appellate briefs and the testimony at the hearing on the petition to
terminate Mother’s parental rights.
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convincing evidence, the ground of abandonment by willful failure to
support and willful failure to visit.
3. Did the trial court err in finding that Appellees had proven, by clear and
convincing evidence, that termination of Mother’s parental rights is in the
child’s best interest.
4. Did the trial court err in denying Appellant’s motion to continue.
5. Did the trial court err in admitting inadmissible evidence.
III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d, at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the children’s best interest. Tenn. Code
Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the children’s best
interests must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes
that the truth of the facts asserted is highly probable . . . and eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July
12, 2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review under Tennessee Rule
of Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de
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novo with a presumption of correctness unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial
court or as supported by the preponderance of the evidence, clearly and convincingly
establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002).
IV. Grounds for Termination of Parental Rights
As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) persistence of the conditions that led to the
child’s removal from Appellant’s home, Tenn. Code Ann. § 36-1-113(g)(3); and (2)
abandonment by willful failure to visit and willful failure to support, Tenn. Code Ann §§
36-1-113(g)(1), 36-1-102(1)(A)(i). Although only one ground must be proven by clear
and convincing evidence in order to terminate a parent’s rights, the Tennessee Supreme
Court has instructed this Court to 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). Accordingly, we will review both of
the foregoing grounds.
A. Persistence of Conditions
As noted above, the trial court terminated Mother’s parental rights on the statutory
ground of persistence of the conditions that led to child’s removal under Tennessee Code
Annotated Section 36-1-113(g)(3). The statute defines persistence of conditions as
follows:
(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:
(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
(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.
The purpose behind the “persistence of conditions” ground for terminating parental rights
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is “to prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment
for the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled
on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). In In re Audrey S.,
182 S.W.3d 838, 872 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Nov. 7, 2005), this
Court held that “based on the statutory text and its historical development, [the ground of
persistence of conditions found in Tennessee Code Annotated Section 36-1-113(g)(3)]
applies as a ground for termination of parental rights only where the prior court order
removing the child from the parent’s home was based on a judicial finding of
dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 872. In In re Audrey S.,
this Court specifically concluded that a preliminary hearing order was not a sufficient
adjudication of dependency and neglect so as to support the ground of persistence of
conditions in a termination of parental rights case:
The March 28, 1996 temporary custody order and preceding
restraining order were entered in a dependency and neglect proceeding, but
they were not based on a judicial finding that Audrey S. was dependent,
neglected, or abused. The statutes and rules governing procedure in the
juvenile courts provide for three types of hearings in cases where a child is
alleged to be dependent, neglected, or abused: (1) preliminary hearings; (2)
adjudicatory hearings; and (3) dispositional hearings . . . . The function of
the adjudicatory hearing is to determine whether the allegations of
dependency, neglect, or abuse are true. Tenn. R. Juv. P. 27(b), 28(a), (f)(1).
The Tennessee Rules of Evidence apply, Tenn. R. Juv. P. 28(c), and the
juvenile court's finding that a child is dependent, neglected, or abused must
be based on clear and convincing evidence, Tenn. Code Ann. 37-1-129(c);
Tenn. R. Juv. P. 28(f)(1)(i)-(ii). The purpose of the dispositional hearing,
which follows the adjudicatory hearing, is to determine the proper
placement for a child who has been found to be dependent, neglected, or
abused. Tenn. .Code Ann. § 37-113(a) (2001); Tenn. R. Juv. P. 32. As its
name implies, a preliminary hearing occurs prior to both the adjudicatory
hearing and the dispositional hearing. Tenn. Code Ann. § 37-1-117(c);
Tenn. R. Juv. P. 6(c), 16(a). Its function is to allow the juvenile court to
decide whether the child should be removed from the parent's custody
pending the adjudicatory hearing. Tenn. Code Ann. § 37-1-117(c); Tenn. R.
Juv. P. 16(c). The juvenile court is allowed to consider reliable hearsay in
making its decision, Tenn. R. Juv. P. 16(a), and it can order the child
removed from the parent’s custody based on a finding of “probable cause”
that the child is a dependent, neglected, or abused child, Tenn. Code Ann. §
37-1-114(a)(2) (2001).
The March 28, 1996 temporary custody order resulted from a
preliminary hearing, not an adjudicatory hearing, and the restraining order
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was designed merely to preserve the status quo in advance of the
preliminary hearing. The temporary custody order contains an implicit
judicial finding of probable cause that Audrey S. was dependent, neglected,
or abused. It does not contain a finding, either explicit or implicit, that
Audrey S. was in fact dependent, neglected, or abused. The juvenile court
never held an adjudicatory hearing on Wilma S.’s petition for temporary
custody of Audrey S., and there is no other court order in the record prior to
the filing of the joint termination petition that reflects a finding of
dependency, neglect, or abuse with respect to Audrey S. Accordingly, the
juvenile court erred in relying on Tenn. Code Ann. § 36-1-113(g)(3) as a
ground for terminating Jamie F.'s parental rights to Audrey S.
In re Audrey S., 182 S.W.3d at 874-75 (some citations omitted). Likewise, in the instant
case, the record contains only a “Temporary Order” from the Juvenile Court of McMinn
County. While this “Temporary Order” concludes that Charles A. is dependent and
neglected in that Mother had been arrested and incarcerated for DUI, it specifically holds
that “temporary custody” will be given to Appellees “until the court date of October 21,
2014.” In fact, at the hearing on the petition to terminate parental rights, Appellees’
counsel refers to this order as “an emergency order based on [Mother’s] arrest.” The trial
court then asks, “[I]t was an emergency order so I take it there was no . . . final
disposition on the dependency and neglect.” Appellees’ counsel replies, “That’s correct.”
We glean that the October 21, 2014 date, which is referenced in the “Temporary Order,”
was set for the adjudicatory hearing on dependency and neglect; however, there is no
indication that an adjudicatory hearing actually occurred. As such, we are left with only
a “Temporary Order” entered after a preliminary hearing before the juvenile court.
Under the holding of In re Audrey S., such temporary orders are not sufficient to support
termination of parental rights on the ground of persistence of conditions. Accordingly,
we reverse this ground for termination of Mother’s parental rights.
B. Abandonment
The trial court also found, by clear and convincing evidence, that Mother’s
parental rights should be terminated on the ground of abandonment by willful failure to
pay support and willful failure to visit pursuant to Tennessee Code Annotated Section 36-
1-113(g)(1) and Tennessee Code Annotated Section 36-1-102(1)(A)(i). In pertinent part,
Tennessee Code Annotated Section 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:
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(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part, as follows:
(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:
(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights
of the parent or parents or the guardian or guardians of the child who
is the subject of the petition for termination of parental rights or
adoption, that the parent or parents or the guardian or guardians
either have willfully failed to visit or have willfully failed to support
or have willfully failed to make reasonable payments toward the
support of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(i). As found by the trial court, the relevant, four-
month time period in this case is February 7, 2015 to May 7, 2015.
In In re Audrey S., this Court discussed willfulness in the context of termination
of parental rights cases:
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
“willfully” failed to visit or “willfully” failed to support the child for a
period of four consecutive months.... In the statutes governing the
termination of parental rights, “willfulness” does not require the same
standard of culpability as is required by the penal code. Nor does it require
malevolence or ill will. Willful conduct consists of acts or failures to act
that are intentional or voluntary rather than accidental or inadvertent.
Conduct is “willful” if it is the product of free will rather than coercion.
Thus, 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 ....
The willfulness of particular conduct depends upon the actor's intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer
into a person's mind to assess intentions or motivations. Accordingly, triers-
of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.
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In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted).
1. Willful Failure to Support
For purposes of Tennessee Code Annotated Section 36-1-102(1)(A)(i), “token
support” means that the support, under the circumstances of an individual case, is not
significant considering the parent’s means. Tenn. Code Ann. § 36-1-102(1)(B). This
Court has held that failure to pay support is “willful” if the parent “is aware of his or her
duty to support, has the capacity to provide the support, makes no attempt to provide
support, and has no justifiable excuse for not providing the support.” In re J.J.C., 148
S.W.3d 919, 926 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002–
02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)).
In its order terminating Mother’s parental rights, the trial court made the
following, relevant findings concerning the ground of abandonment by willful failure to
support:
[Appellees] proved by clear and convincing evidence that the grounds for
termination [of Mother’s parental rights by] abandonment by willful failure
to support exist as the mother admitted during her testimony that she has
not provided support for the minor child during the four (4) months prior to
the filing of this action, thus confirming the undisputed proof of the same.
Turning to the record, Appellees testified that since Charles A. has lived with
them, Mother has provided no financial support. Mother initially testified that she did not
know to provide support because there was no court order requiring her to pay support.
In Tennessee, “[a] parent’s obligation to support his or her child exists regardless of a
court order requiring the parent to pay support.” In re Jacobe M.J., 434 S.W.3d 565, 572
(Tenn. Ct. App. 2013) (quoting Tenn. Code Ann. § 36-1-102(1)(H)). Furthermore,
“[e]very parent who is eighteen (18) years of age or older is presumed to have knowledge
of a parent’s legal obligation to support such parent’s child or children.” Id. Accordingly,
Mother’s argument, in this regard, is not persuasive. Regardless, as set out below, in her
testimony, Mother later acknowledged that she was responsible for providing for her
child.
At the time of the hearing on the petition to terminate her parental rights, Mother
was not employed. She testified that she has not been employed since 2011. When asked
whether she is disabled, Mother answered, “No. I’m going for my disability now.”
Mother provided no proof that she has, in fact, sought disability. Mother went on to
testify that she occasionally cleans houses for $75 to $125, but she could not confirm her
exact earnings. At the time of the hearing, Mother lived with her parents, who paid for
her food and vehicle.
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Mother testified that she had sent cards to Charles A. and that she had bought him
a birthday gift, but admitted that the gift was “still in the closet at my parents’ house.”
Mother went on to testify, in relevant part, as follows:
Q. You’ve still not paid any type of financial support for [Charles A.],
correct?
A. Correct.
***
Q. You didn’t take the step of paying to help support your child, correct?
A. Correct.
Q. A responsibility that you acknowledge that you have, correct?
A. Correct.
From the foregoing testimony and the entire record, we conclude that there is clear and
convincing evidence to support the trial court’s termination of Mother’s parental rights on
the ground of abandonment by willful failure to support.
2. Abandonment by Willful Failure to Visit
In its order terminating her parental rights, the trial court made the following,
relevant findings concerning Mother’s failure to visit:
The Court finds th[at] [Appellees] proved[,] by clear and convincing
evidence[,] the ground for termination of [Mother’s] parental rights by
abandonment by willful failure to visit . . . [Mother] testified that she could
have visited with the minor child in the four months prior to the filing of
this action, and the last meaningful contact [Mother] had with the child was
October 6, 2014. The Court also finds the mother never took any court
action to be reunited with, or to exercise time, with her child. The Court
finds the parties have the same phone numbers and [Appellees] have lived
at the same location for years, and the mother was aware of the means of
availing herself of visits, but she did not utilize the phone numbers, or
attempt to visit. The Court finds mother made no attempt to see the child or
communicate with the child after October 6, 2014.
The record supports the foregoing findings. Mother testified, in relevant part, as follows:
Q. You’ve not visited with [Charles A.], correct?
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A. Correct.
Q. The last time [Charles A.] saw you, was it when a police officer pulled
him out of the back of your [car] when you were being arrested for DUI?
A. They had—no. [Charles A.] was asleep when the police pulled me over.
***
Q. So the last time [Charles A.] would’ve seen you was at 3:30 in the
morning, approximately, when you were drunk and you put him in your car
to drive away, correct?
A. Right.
Although Mother went on to testify that she had tried to contact Appellees to set up visits
with Charles A., she stated that the Appellees had not called her back. Appellees
testified, separately, that Mother had not contacted them. For example, Mr. M. testified:
Q. Do you have any recollection of [Mother] making any type of effort to
reach out and communicate with [Charles A.] from October 2014 until May
of 2015?
A. No.
Mother admitted that the Appellees had lived at the same location and had the same
phone number during the entire time that Charles A. has lived with them. Mother
admitted that she had not sought visitation through the courts although she knew how to
do that and conceded that it was her responsibility to seek visitation:
Q. You didn’t take the step of visiting your child, correct?
A. Correct.
***
Q. A responsibility that you acknowledge that you have, correct?
A. Correct.
From the foregoing testimony and the entire record, we conclude that there is clear
and convincing evidence to support the trial court’s termination of Mother’s parental
rights on the ground of abandonment by willful failure to visit.
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Although we reverse the trial court’s finding as to the ground of persistence of
conditions, in order to terminate parental rights, the moving party need only establish one
of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c). Because we
have affirmed the remaining ground that the trial court relied on in terminating Mother’s
parental rights, i.e., abandonment by willful failure to visit and support, we proceed to the
review of the trial court’s finding that termination of Mother’s parental rights is in the
Charles A.’s best interest.
V. Best Interest
When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” White, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(1) 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 . . .
***
(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;
(5) The effect a change of caretakers and physical environment is likely to
have on the child's emotional, psychological and medical condition;
Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
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exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent's rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated, statutory factors may dictate the outcome of the
best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
White, 171 S.W.3d at 194.
In holding that termination of Mother’s parental rights is in the child’s best
interest, the trial court primarily relied on the statutory criteria specifically set out above
and found, in relevant part, that:
4. The Court finds the proof revealed the [Mother] is still working on
herself, and as she admitted this self-improvement would need to be
accomplished in order for her to be able to be the kind of parent that she
needs to be. The Court also finds the proof revealed [Mother’s] efforts
have been diverted along the way by relationships with men, and a lifestyle
that is not stable enough, as confirmed by her own admissions . . . to permit
the kind of parental involvement necessary to be a fit parent.
5. The Court finds the proof revealed the best the [Mother] could offer the
child was to rely on her parents for housing and financial support; however,
her parents did not attend the trial to testify in her favor.
6. The Court also finds the termination of [Mother’s] parental rights is in
the best interest of the minor child as [mother] has not made an adjustment
to her circumstances, conduct, or conditions so as to make it safe for the
child to be in the home of the [Mother].
***
7. [T]he Court finds [that] . . . Mother has not made an adjustment to her
circumstances, conduct or conditions as to make [it] safe and in the child’s
best interest to be in [Mother’s home].
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8. The Court finds [that] . . . [Mother] has not maintained regular visitation
or other contact with the minor child.
9. The Court finds by clear and convincing evidence the [Appellees] have
established a strong relationship with the child.
The record supports the trial court’s findings regarding Charles A.’s best interest.
Concerning the first statutory factor, i.e., 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, the record shows that Mother made a decision, while
under the influence, not only to drive a vehicle, but also to have Charles A. as a passenger
in the car. Concerning this incident, Mother testified, in relevant part:
Q. Where were you going at 3:30 in the morning?
A. I was going back to where I reside . . . .
Q. You acknowledge that 3:30 in the morning is an inappropriate time for a
child his age to be out riding around, correct?
A. Correct.
Q. You also acknowledge that 3:30 in the morning or anytime for that
matter is an inappropriate time for you driving a minor while you’re under
the influence of alcohol.
A. Correct.
Q. But yet you chose to do that, correct?
A. Yes, I did.
Q. How often as a practice would you drive [Charles A.] and be under the
influence of alcohol?
A. That was the first time in a long long time that I had drunk.
Q. How long is a long time?
A. Several, several, several months
Mother testified that, since her October 2014 arrest, she has completed a
twelve-step program to address her alcohol and drug use. However, there is
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no proof in the record to substantiate her testimony, e.g., a certificate of
completion. While Mother should be given credit for her decision to
address her substance abuse issues, in order for her to be a parent to Charles
A., there would need to be proof that her recovery is permanent.
Concerning her current efforts, Mother testified:
[O]nce I got out of jail I figures [sic] out the steps I have got to take [] to
get myself well . . . so I will be able to take care of [Charles A.], and that is
hard to do when you think you can control everything by your next drink . .
. and that’s the only thing I can honestly say is, I haven’t been drinking . . . .
I have took [sic] parenting classes . . . . I’ve had NA classes, I’ve [had] my
12 and 24 step program with the drugs and alcohol. They’ll tell you the
first couple of years of getting out of that [are] the hardest and it was, and
everybody’s been saying [that one will] relapse and stuff. Well, I had my
relapse and I don’t care to ever go back down the road, the drinking or
anything like that ever again because I see what it’s done.
Q. Did you complete your 12-step program?
A. Yes.
Q. Are you continuing in your steps to maintain your sobriety?
A. I got my book that I still have and I go through. Every once in a while
I’ll call my sponsor and, you know, hey, it’s been one of those kind of days
. . . It’s not that I want to drink . . . .
The foregoing testimony does not preponderate in favor of a finding that Mother’s
adjustments are permanent, i.e., she admits to having relapsed, and her contact with her
sponsor appears sporadic. Mother’s abuse of alcohol has, in the past, put Charles A. in
harm’s way. Without sufficient proof to show that Mother’s sobriety is secure, we agree
with the trial court’s finding that it would not be in Charles A.’s best interest to be in
Mother’s custody.
Mother’s living situation is also troubling. During her testimony, Mother admitted
that she has moved nine times in Charles A.’s lifetime (6 years). At the time of the
hearing, Mother was residing with her parents, whom she admitted were not in good
health. As noted by the trial court, Mother’s parents did not attend the hearing;
accordingly, there is no evidence as to whether Mother’s parents’ home would be safe for
Charles A. Regardless, Mother testified that she does not stay with her parents every
night. Rather, she spends “a couple of days a week” with her current paramour. Mother
admitted to the lack of stability in her life:
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Q. Don’t you think that [the fact that you have lived in nine different
places] shows a lack [of] stability on your part as far as being able to
provide a home for you and most importantly for our purposes a home for
[Charles A.]
A. That does show a lack, yes.
In addition to her transient lifestyle, Mother is unemployed and has no means of
support except for her parents and her paramour. There is no indication that she would
be able to independently support this child. In fact, Mother testified that, “I probably
could work physically, yes, I think I could. Mentally and emotionally, no, I am not stable
enough to . . .” Despite Mother’s allegation that she is mentally and emotionally unable
to work, there is no evidence to support her statement. Regardless, due to her lack of
income, Mother has never paid support for Charles A. The record shows that all of his
needs have been provided by the Appellees. Appellees testified that they view Charles A.
as their own child, that he is part of their family, and that they will always care for him
and provide for him. On the other hand, Mother has not seen Charles A. since her arrest
in October of 2014. It is apparent from Mother’s testimony that she knows very little
about Charles A.’s daily life at this point. For example, Mother testified, in relevant part,
as follows:
Q. Who is [Charles A.’s] best friend?
A. Got me.
Q. Who was his teacher this year?
A. Got me. . .
Conversely, Charles A.’s guardian ad litem testified, in relevant part, that:
I was able to speak to the child . . . . I was able to interact with him, even
though he was five years old, soon to be six, I found him to be very, very
intelligent. He was aware that the [Appellees] were not his biological
parents, but he repeatedly told me. . . that he wished for them to be his
permanent parents. I spoke to him at length. I watched the interaction that
he had with the [Appellees,] and it is obvious that there is a deep emotional
attachment between the child and the [Appellees] and, as such, I feel it is in
the [child’s] best interest given all the factors that the child remain with the
[Appellees].
Given the fact that Charles A. has lived five of his six years with Appellees, there is no
indication that he has any bond with Appellant. From the totality of the circumstances
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and the record as a whole, we conclude that the evidence preponderates in favor of the
trial court’s findings and these findings provide clear and convincing evidence that
termination of Mother’s parental rights is in Charles A.’s best interest.
VI. Motion for Continuance
Before the May 23, 2016 hearing commenced, Mother’s attorney made an oral
motion for a continuance, and the trial court denied the motion. On appeal, Mother
argues that, “[g]iven the importance of all information being necessary for the Court in
order to terminate the parental rights of a biological parent, and of the parent’s right to
bring all exonerating information before the court, [M]other contends that the denial of
her motion to continue was an abuse of discretion.”
Tennessee Code Annotated Section 20-7-101 provides that “[c]ontinuances ... may
always be granted by the court, upon good cause shown, in any stage of the action.” The
decision whether to grant or deny a request for a continuance is, therefore, a matter
within the sound discretion of the trial court. Sanjines v. Ortwein & Assocs., Inc., 984
S.W.2d 907, 909 (Tenn.1998) (citing Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415
(Tenn.1997)). An appellate court cannot interfere with the trial court’s decision unless the
court’s decision constitutes an abuse of discretion and causes prejudice to the party
seeking the continuance. Sanjines., 984 S.W.2d at 909. The Tennessee Supreme Court
has stated that “under the abuse of discretion standard, a trial court’s ruling ‘will be
upheld so long as reasonable minds can disagree as to propriety of the decision made.’”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33 S.W.3d
746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.2000)). This
standard does not permit the appellate court to substitute its judgment for that of the trial
court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998). Rather, an abuse of
discretion occurs only when the trial court “applies an incorrect legal standard, or reaches
a decision which is against logic or reasoning that causes an injustice to the party
complaining.” Eldridge, 42 S.W.3d at 85 (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn.1999)).
As grounds for the continuance, Mother’s attorney stated that:
It came to my attention about an hour ago, from my client, that she
represented to me and to the guardian ad litem that she brought a packet of
information, that she felt would work in her favor, to my office in February.
I was not in my office at the time. I was not aware that she brought it to my
office. I have communicated with my office and they don’t recall it being
dropped off. They’ve searched the office and they cannot find it so I would
like to make a motion to continue based on the fact that I don’t have this
information . . . .
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Appellees’ counsel and the guardian ad litem opposed the motion. The trial court
inquired as to the nature of the documents:
Well, would it not help you and me and the other parties to know what this
paperwork is supposed to have in it that’s so pertinent that couldn’t have
been conveyed verbally by the client? I mean, the paperwork is probably
not admissible.
Mother’s attorney answered that the documents allegedly pertained to treatment that
Mother had completed, to wit:
Well, from what I understand, Your Honor, documents have to do with the
fact that [Mother] went to treatment and completed anger management, but
they don’t address the—there was no evidence in the documents concerning
some of the other things that the petitioner was arguing, namely, whether or
not there’s been any contact with the child or whether there was financial
support for the child, and I think those were two of the allegations made by
the petitioners.
The trial court then opined that,
[i]f [Mother] testified, I might allow [the documents] to be entered as
exhibits, just to show dates and things like that. I might allow it. I don’t
know. I don’t like to shoot in the dark, but she’d need to testify.
Mother’s attorney then stated that Mother would not testify, and the trial court denied the
motion for continuance, stating “I will deny the motion because those documents would
not be admissible, it doesn’t appear to me, and there is no need to continue the case if
that’s what’s going on here . . . .” Despite her attorney’s statement that she would not
testify at the hearing, Mother did, in fact, testify. However, during her testimony there
was no attempt to introduce any documents related to the completion of anger
management or treatment; nonetheless, Mother was allowed to testify that she had
participated in parenting classes and had completed a twelve-step program.
In light of Mother’s attorney’s statement that the documents, which allegedly
necessitated a continuance, were not germane to the question of abandonment by willful
failure to visit or support, but were relevant (if at all) to the question of whether the
conditions that led to the child’s removal still persist,
this Court’s ultimate holding that, in the absence of an adjudicatory order on dependency
and neglect, the ground of persistence of conditions cannot lie renders the purported
documents irrelevant. In view of our holding, and in light of the fact that Mother was
allowed to testify as to her treatment and classes, we cannot conclude that the trial court’s
denial of a continuance was an abuse of discretion.
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VII. Admission of Evidence
In her final issue, Mother argues that the trial court erred in allowing Appellees to
testify regarding their belief that mother used illegal substances and had an unstable
lifestyle. Mother first alleges that Randy M. was allowed to testify as follows:
Q. Did you see [Mother] do anything that would’ve caused you great
concern?
A. Yes.
Q. What would’ve caused you any concern?
A. Drinking and a lot of different people at her house, you know.
Mother also cites the portion of Randy M.’s testimony where he explains the
circumstances that led to Appellees seeking custody of Charles A., when the child was
one year old. Mr. M. stated that he received a call from a relative, who told Mr. M. that
Mother and Father were fighting. At this point, Mother’s attorney objected on the ground
of hearsay, and the trial court sustained the objection. Mother also alleges that the trial
court erred in allowing Mr. M. to testify concerning her DUI arrest in October of 2014.
Mr. M. stated that “the police report reads that [Charles A.] was in the back seat.”
Mother’s attorney objected to Mr. M. testifying as to what was in the police paperwork.
Appellees’ attorney then moved for entry of Trial Exhibit 1, which is the “Temporary
Order” entered in the juvenile court. As discussed above, this order states that Charles A.
“is in need of a custodian due to the mother being arrested for DUI . . . .” Trial Exhibit 2
is the General Sessions Court of McMinn County’s judgment, finding Mother guilty of
DUI. Finally, Mother’s attorney objected to Mr. M.’s testimony that during “[t]he first
twelve months [of Charles A.’s life] [Mother] lived [in] five different places, and then it’s
been housing projects, her mom’s, her sister, her—a houseboat on the lake and with
numerous men.”
Mother also objected to Dawana M.’s testimony that she was concerned with
Mother’s “drinking and aggressive behavior.” The trial court sustained Mother’s
attorney’s objection, limiting Mrs. M.’s testimony to “what you personally observed.”
During her testimony, Mrs. M. also used the term “moral duty” to refer to Appellees’ role
in Charles A.’s life. Mother’s attorney objected to this term, and the trial court allowed
Appellees’ attorney to clarify. Appellees’ attorney then questioned Mrs. M. concerning
the specific care Appellees provide for Charles A.
As this Court stated in Delapp v. Pratt:
Issues regarding admission of evidence in Tennessee are reviewed for
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abuse of discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct.
App. 2001). “[T]rial courts are accorded a wide degree of latitude in their
determination of whether to admit or exclude evidence, even if such
evidence would be relevant.” Id. Our Supreme Court discussed the abuse of
discretion standard in Eldridge v. Eldridge, stating:
Under the abuse of discretion standard, a trial court’s ruling
“will be upheld so long as reasonable minds can disagree as
to [the] propriety of the decision made.” A trial court abuses
its discretion only when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party complaining.”
The abuse of discretion standard does not permit the appellate
court to substitute its judgment for that of the trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (citations omitted).
Appellate courts ordinarily permit discretionary decisions to stand
when reasonable judicial minds can differ concerning their soundness.
Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A
trial court’s discretionary decision must take into account applicable law
and be consistent with the facts before the court. Id. When reviewing a
discretionary decision by the trial court, the “appellate courts should begin
with the presumption that the decision is correct and should review the
evidence in the light most favorable to the decision.” Id.
Delapp v. Pratt, 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004).
Turning to the record, the testimony that Mother objected to at trial and on appeal
is largely corroborated by Mother’s own testimony, see supra. For example, Mother
testified that she was guilty of DUI and that Charles A. was a passenger in the car when
she was stopped. Trial Exhibits 1 and 2 corroborate Mother’s testimony. Mother also
testified that she has trouble with alcohol and that she is trying to remain sober. Mother
candidly testified concerning the lack of stable housing and the fact that she had lived in
at least nine places since Charles A. was born. In view of the fact that the disputed
testimony is corroborated by independent evidence in the record, we cannot conclude that
the trial court abused its discretion in allowing Appellees to testify regarding Mother’s
instability, use of illegal substances, or DUI arrest. However, even if we allow,
aruguendo, that the trial court’s ruling on this testimony was erroneous, the corroborating
evidence would render such error harmless. In re C.M., No. M2014-02571-COA–R3-
JV, 2015 WL 9311287, *19 (Tenn. Ct. App. Dec. 18, 2015) (“The [disputed] testimony is
corroborated by independent evidence in the record. In light of the independent testimony
corroborating [the disputed] statements, we conclude that the trial court’s decision to
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overrule Appellants’ objection to the testimony was, at most, harmless error.”).
VIII. Conclusion
For the foregoing reasons, we reverse the trial court’s termination of Mother’s
parental rights on the ground of persistence of the conditions that led to the child’s
removal. We affirm the termination of Mother’s parental rights on the ground of
abandonment and on the trial court’s finding that termination of Mother’s parental rights
is in the child’s best interest. The case is remanded to the trial court for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed to the Appellant, Olivia B. Because Appellant is proceeding in forma
pauperis in this appeal, execution for costs may issue if necessary.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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