In Re: Hannah W. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 13, 2014
IN RE: HANNAH W., ET AL.
Appeal from the Juvenile Court for Roane County
No. 2012-JC-276 Dennis Humphrey, Judge
No. E2013-02384-COA-R3-PT-FILED-APRIL 3, 2014
The Juvenile Court terminated the parental rights of Ralph D.M. (“Father”) to the minor twin
children Alexis W. and Hannah W. (“the Children”) on the grounds of abandonment by
willful failure to visit pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i),
substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-
113(g)(2), and persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). Father
appeals the termination of his parental rights asserting that he is neither the biological father
nor the legal father of the Children and, therefore, had no parental rights to the Children to
be terminated. We find and hold that the evidence does not preponderate against the Juvenile
Court’s finding by clear and convincing evidence that Father is the Children’s legal father,
that grounds existed to terminate Father’s parental rights, and that the termination of Father’s
parental rights was in the Children’s best interest. We affirm the termination of Father’s
parental rights to the Children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
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.
Ralph D.M., Harriman, Tennessee, pro se Appellant.
Robert E. Cooper, Jr., Attorney General and Reporter; and Ryan L. McGehee, Assistant
Attorney General for the appellee, State of Tennessee Department of Children’s Services.
OPINION
Background
In June of 2013, the State of Tennessee Department of Children’s Services
(“DCS”) filed a petition seeking to terminate the parental rights of Father to the Children
(“the Petition”).1 Father filed a pro se response to the Petition alleging, in part, that he was
neither the biological nor the legal father of the Children. The case proceeded to trial in
September of 2013. Father made no appearance at trial.
The Children’s DCS family services worker, Tommy Eckles, testified at trial.
Mr. Eckles testified that DCS had identified Father as the legal father of the Children. Mr.
Eckles testified that he had spoken with Father and informed Father that the Children were
in State custody.
Mr. Eckles testified that during the four month period preceding the filing of
the Petition, Father had not visited with the Children at all. He further testified that Father
was not in jail or incapacitated during this time period such as would have prevented Father
from visiting with the Children. Mr. Eckles testified that Father last visited with the Children
on January 7, 2012, several days after the birth of the Children and almost a year and a half
prior to the filing of the Petition. Mr. Eckles testified that DCS made the Children available
for visitation. Mr. Eckles gave Father a copy of the criteria for termination of parental rights,
which Mr. Eckles testified includes an explanation of a parent’s duty to visit the children.
Mr. Eckles testified that Father appeared to understand the contents of the criteria. Father
has paid no child support for the Children during the entire time the Children have been in
State custody.
Mr. Eckles testified that a permanency plan (“Permanency Plan”) was created
for the Children in February of 2012. Father was invited to attend the development of the
Permanency Plan, but failed to show up. The Permanency Plan was ratified by the Juvenile
Court in April of 2012. Mr. Eckles provided Father a copy of the Permanency Plan by going
to Father’s home and handing it to Father. Father had no questions for Mr. Eckles about his
responsibilities under the Permanency Plan.
The Permanency Plan required Father to undergo an alcohol and drug
assessment and follow all recommendations, undergo a mental health assessment and follow
all recommendations, apply for TennCare through DHS, complete a domestic violence
1
The petition stated that the biological mother’s parental rights to the Children had been terminated
previously.
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education class, complete a parenting class, and maintain contact with DCS. Mr. Eckles
testified that Father completed none of the action steps required of him under the
Permanency Plan. Mr. Eckles testified that DCS provided Father with “resources, places for
him to go, addresses and phone numbers,” and offered Father rides to get to those places, but
Father declined those offers.
Mr. Eckles explained that the Children were taken into State custody because
they were born drug exposed. Mr. Eckles testified that when the Children were born, Father
was under the influence of drugs, was not appropriate, and had had previous cases with DCS.
Mr. Eckles testified that Father had domestic violence issues and that there were concerns
about Father’s mental health. Mr. Eckles testified that none of the these conditions had been
resolved at the time the Petition was filed, and Father had taken no steps to remedy the
conditions. Mr. Eckles testified that Father never has indicated a willingness to assume
custody of the Children. In fact, Father never made any statements to Mr. Eckles regarding
the Children.
Mr. Eckles was asked if there were any other conditions which would make
Father’s home inappropriate for the Children, and he testified that the Children’s biological
mother was living there and that her parental rights to the Children previously had been
terminated. Mr. Eckles also was asked if the physical environment of Father’s home was
healthy and safe, and he testified that Father recently had moved in with his parents, and
because they would not allow Mr. Eckles into their home, Mr. Eckles could not confirm if
the home was healthy and safe.
Mr. Eckles testified that Father has a criminal history including violent crimes.
This history includes domestic violence and “run[ning] people off his property with a
weapon.” Mr. Eckles also testified that to his knowledge Father has done nothing to resolve
his substance abuse issues. Mr. Eckles does not believe that the conditions that caused the
Children to be taken into State custody could be remedied at an early date.
At the time of trial, the Children were in foster care with a family who had
expressed an intention to adopt them should they become available for adoption. Mr. Eckles
testified: “It’s a two family home, both parents working. They had two teenage boys. The
girls are getting along well. They are meeting all the girls’ needs, physically and
emotionally, medical. The girls have been in day care for over a year now. They’re in
therapy, and they’re thriving.” The Children were placed with their foster family
immediately upon being released from the hospital after their birth and have remained there
since that time. Mr. Eckles testified that it was his opinion that it was in the Children’s best
interest for Father’s parental rights to be terminated.
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After trial, the Juvenile Court entered its detailed order on September 23, 2013
terminating Father’s parental rights to the Children after finding and holding, inter alia:
As required by Tenn. Code Ann. §36-1-113(k), the Court makes the
following findings of fact by clear and convincing evidence based on the
testimony of witnesses, the exhibits presented during the trial of this cause, as
well as the entire record in this action.
The subject children entered the custody of the State of Tennessee on
January 30, 2012, pursuant to a protective custody order entered by the Court.
DCS filed a petition alleging that the children were dependent and neglected
children due to pre-natal drug exposure. The children were born on January
3, 2012. Upon entering the hospital for their birth, [the biological mother]
tested positive for oxycodone and benzodiazepine; she did not have a valid
prescription for either substance. Both children were born testing positive for
opiates and received morphine treatment for neonatal abstinence syndrome.
Upon further investigation, it was determined that the family had extensive
history with DCS and that the mother had previously lost custody of her other
seven children, primarily for substance abuse. These subject children, [the
Children], were removed from the home due to domestic violence between the
parents and persistent drug use and intoxication of the parents, rendering the
home unsafe for these medically fragile children. On April 24, 2012, the Court
found by clear and convincing evidence that the children were dependent and
neglected in the care of [Father] due to: the drug exposure of these infants
resulting in them suffering withdrawal symptoms, drug use in the home, and
domestic violence between the parents. DCS developed a permanency plan for
the family on February 21, 2012; the father chose not to attend this meeting
despite numerous attempts to engage him in this process by Case Manager
Tommy Eckles. The permanency plan was ratified and made an order of this
Court on April 24, 2012. A copy of the permanency plan along with the
Criteria and Procedures for Termination of Parental Rights was hand delivered
to [Father] by Case Manager Tommy Eckles. DCS did make reasonable
efforts to engage the father in the permanency plan. Case Manager Tommy
Eckles testified that he made repeated attempts to maintain contact with the
father by telephone and mailings; further, Case Manager Eckles did make
repeated attempts to locate the father at his residence. Case Manager Eckles
offered to drive the father to meetings and to service appointments. Case
Manager Eckles scheduled child and family team meetings and the
permanency plan meeting for the father and offered transportation to him.
Case Manager Eckles provided the father with resources and services to assist
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him in making progress under the permanency plan; the father refused all
attempts by Case Manager Eckles to assist him and failed to even make the most
minimal efforts to improve his condition. The father did not complete any of the tasks
under the permanency plan. The father last visited with the children on January 7,
2012. Since that time, the father has not requested visitation and has not attempted to
visit the children despite numerous attempts by Case Manager Tommy Eckles to set
up visitation for the father. The father has not ever paid any child support or provided
any necessities for the minor children. The Court finds that it is in the best interest of
these minor children that the father’s rights be terminated.
B. Conclusions of Law: Under Tennessee law, termination of parental rights
must be based on a finding by the court by clear and convincing evidence that (1) the
grounds for termination of parental rights have been established; and (2) termination
of the parent’s or guardian’s rights is in the best interest of the child. Tenn. Code Ann.
§36-1-113(c).
Here, the Court concludes that there is clear and convincing evidence to
support grounds for termination of [Father’s] parental rights under Tenn. Code Ann.
§36-1-113(g). In addition, the Court concludes, based on clear and convincing
evidence that termination of [Father’s] parental rights is in the children’s best interest.
Each ground is discussed in turn.
1. Abandonment - Failure to Visit
T.C.A. §§ 36-l-113(g)(1) and 36-l-102(1)(A)[(i)]
In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-
102(1)(A)[(i)], the Court finds that there is clear and convincing evidence that the
father knew that his children were in DCS custody because Case Manager Tommy
Eckles spoke with the father in person and told him that the children were in foster
care. Further, Case Manager Eckles did inform the father that he did have the duty to
visit the children and that his failure to visit the children could result in the
termination of his parental rights.
Case Manager Eckles made numerous attempts to set up visitation with the
father by contacting him via telephone, mail, and by meeting with him at his residence.
Further, Case Manager Eckles offered to transport the father to visits with the children.
The father was not incarcerated or incapacitated in any way during the time his
children were in foster care that would render him unable to visit them. Despite Case
Manager Eckles’ substantial reasonable efforts, the father did not ever visit the
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children after they entered foster care; the father last saw the children on January 7,
2012, [four] days after their birth.
2. Substantial Noncompliance with the Permanency Plan
T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-
403(a)(2), the Court finds that there is clear and convincing evidence that the father
failed to substantially comply with the permanency plan, despite reasonable efforts by
the Department. After the children entered state custody, DCS created a permanency
plan for them. The permanency plan listed a number of requirements narrowly
tailored to remedy the conditions which lead [sic] to the children being placed in foster
care. The requirements were necessary to have been completed to allow the children
to return home safely. The permanency plan gave [Father] until June 30, 2012 to
satisfy the requirements under the permanency plan.
The permanency plan required [Father] to: complete an alcohol and drug
assessment by April 15, 2012 and follow all recommendations; apply for TennCare
through the DHS office, if necessary, by April 1, 2012; participate and complete
domestic violence education and/or counseling; complete a mental health assessment
by April 15, 2012, and follow all recommendations; enroll in and complete parenting
classes; stay in contact with the foster care case manager; and inform the foster care
case manager of any change in his circumstances. DCS explained the requirements
and responsibilities to [Father].
The Juvenile Court ratified the plan as in the best interest of the minor children
and found that the requirements for [Father] were reasonably related to remedying the
reasons for foster care on April 24, 2012. [Father] did not substantially comply with
the permanency plan. [Father] did not: set up an alcohol and drug assessment; apply
for TennCare, participate in domestic violence education or counseling; complete a
mental health assessment; participate in parenting classes; or stay in contact with the
foster care case manager.
DCS did make reasonable efforts to assist [Father] to satisfy the requirements
for him under the permanency plan. Specifically, Case Manager Eckles made
repeated attempts to contact [Father] by telephone and mailings; made repeated
attempts to visit the father at his residence; made multiple offers to transport the father
to meetings and to service providers; made repeated attempts to set up meetings, both
personal meetings for needed services and Child and Family Team Meetings; arranged
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for paternity testing; and made multiple offers to set up or assist in setting up services
to assist the father in completing the tasks under the permanency plan.
3. Persistent Conditions
T.C.A. §§ 36-l-113(g)(3)
In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-
403(a)(2), the Court finds that there is clear and convincing evidence that the
conditions which lead [sic] to the necessity for foster care do still persist to this day and
that there are other conditions in the home, which in all reasonable probability, would
result in further abuse or neglect to the minor children.
The children entered foster care due to substance abuse in the home which
rendered the children drug exposed at birth resulting in a diagnosis of neonatal
abstinence syndrome for the children; there were also concerns of domestic violence
in the father’s home. The conditions which led to the removal of the children do still
persist to this day. [Father] has not sought treatment for drug abuse, mental health
issues or domestic violence, rendering the home unsafe for the children’s return.
There is little chance that these conditions can be remedied at an early date because for
the last twenty-one months, the father has failed to make even minimal efforts to
remedy these conditions despite reasonable efforts by DCS.
4. Best Interest
Under Tenn. Code Ann. §36-1-113(i)(1) [sic], the Court is required to find that
termination of parental rights is in the child’s best interest.
In this case, the Court finds that there is clear and convincing evidence that
termination of [Father’s] parental rights is in the best interest of the children in that
[Father] has not made changes in his conduct or circumstances that would make it safe
for the children to go home. [Father] has not made even minimal efforts under his
permanency plan which renders his home unsafe for the children to return to. Despite
reasonable efforts by DCS, the father has failed to make lasting change in his
circumstances. [Father] has not maintained any visitation with the children and in fact
has not visited the children even once since January 7, [2012], [four] days after their
birth. The children do not have a meaningful relationship with [Father]. The children
have been in the same pre-adoptive foster placement since they entered foster care
when the children were less than one month old. A change in caretakers at this time,
after living with the same resource family for over one year, would be detrimental to
the children. [Father] has not sought treatment for his substance abuse which renders
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him consistently unable to safely care for the children. The father has shown little or
no interest in the welfare of these children and has provided no support for the benefit
of these children. The children are placed together and are known to have a strong
bond with their resource family; the children’s foster parents wish to adopt them.
Father appeals the termination of his parental rights to this Court.
Discussion
Although not stated exactly as such, Father raises only one issue on appeal: whether
the Juvenile Court erred in terminating his parental rights to the Children when Father asserts that he
is neither the biological nor the legal father of the Children.
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)).
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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 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).
To begin, we note that Father is proceeding with this appeal pro se. In Whitaker v.
Whirlpool Corp. this Court observed that:
Pro se litigants are entitled to fair and equal treatment. See Childs v. Duckworth, 705
F.2d 915, 922 (7th Cir. 1983). Pro se litigants are not, however, entitled to shift the
burden of litigating their case to the courts. See Dozier v. Ford Motor Co., 702 F.2d
1189, 1194 (D.C. Cir. 1983). Pro se litigants are not excused from complying with
the same substantive and procedural requirements that other represented parties must
adhere to. See Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App.
1988).
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).
Father has demonstrated that he is capable of participating in this case as is shown by
the fact that Father filed a response to the Petition in the Juvenile Court, filed a timely notice of appeal
of the Juvenile Court’s order, filed a brief and a reply brief on appeal, and filed a properly completed
affidavit of indigency on appeal. Although Father filed a reply to the Petition, Father made no
appearance whatsoever at trial. Father also filed with this Court an executed affidavit of indigency.
We remanded this case to the Juvenile Court to consider Father’s affidavit of indigency. Upon
remand, the Juvenile Court determined that Father was indigent for the purpose of maintaining an
appeal. The record is devoid of any evidence that Father filed an affidavit of indigency prior to trial.
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In addition to filing a brief and a reply brief on appeal with this Court, Father attempted
to file with this Court various other documents, which were not properly admitted at trial and are not
properly included in the record on appeal. As these documents were not admitted at trial, and are not
properly before us on appeal, we will not consider them.
In his brief on appeal, Father asserts that he is neither the biological father nor the legal
father of the Children. Father alleges a legal defect in his marriage to the Children’s biological mother
and also asserts that he was not considered the father of other children born to the biological mother
and, therefore, should not be considered the father of the Children. Father’s allegations, however, are
not supported by the record on appeal. The only evidence in the record on appeal with regard to
parentage is the testimony of the DCS family services worker, Tommy Eckles, that DCS had
identified Father as the legal father of the Children. There is no evidence whatsoever in the record on
appeal to contradict this evidence. The evidence in the record on appeal does not preponderate against
the Juvenile Court’s finding by clear and convincing evidence that Father was the legal father of the
Children at the time of the trial. As such, we find no error in the Juvenile Court’s determination that
Father was the legal father of the Children at the time of trial.
The record reveals that it was Father’s own choices which resulted in the record being
devoid of evidence supporting Father’s arguments. Father chose not to file an affidavit of indigency
prior to trial, chose not to request an attorney to assist him at trial, and chose not to make any
appearance whatsoever at the trial. Father has demonstrated that these were deliberate choices, and
Father has provided no excuse whatsoever for his failure even to appear at trial.
Although Father contests on appeal neither grounds nor best interest, we will review
both because of the importance of this decision to the Children. The Juvenile Court terminated
Father’s parental rights to the Children on the grounds of abandonment by willful failure to visit
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i), substantial noncompliance
with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and persistent conditions
pursuant to Tenn. Code Ann. § 36-1-113(g)(3). In pertinent part, Tenn. Code Ann. § 36-1-113(g)
provides:
(g) Initiation of termination of parental or guardianship rights may be based upon any
of the grounds listed in this subsection (g). The following grounds are cumulative and
non-exclusive, so that listing conditions, acts or omissions in one ground does not
prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
(2) There has been substantial noncompliance by the parent or guardian with the
statement of responsibilities in a permanency plan pursuant to the provisions of title
37, chapter 2, part 4;
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(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
(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). As pertinent to this appeal, 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:
(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(s) or guardian(s)
of the child who is the subject of the petition for termination of parental rights or
adoption, that the parent(s) or guardian(s) 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) (2010).
In its September 23, 2013 order the Juvenile Court made specific and detailed findings
that clear and convincing evidence was proven that grounds existed to terminate Father’s parental
rights to the Children pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3). As
discussed more fully above, the evidence in the record on appeal does not preponderate against these
findings made by the Juvenile Court by clear and convincing evidence. The Juvenile Court also made
specific and detailed findings that it was in the Children’s best interest for Father’s parental rights to
be terminated. Again, we need not reiterate the evidence as it is discussed fully above, and the
evidence in the record on appeal does not preponderate against the Juvenile Court’s findings made
by clear and convincing evidence. As grounds for termination were proven by clear and convincing
evidence and it was proven by clear and convincing evidence that the termination of Father’s parental
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rights was in the Children’s best interest, we find no error in the Juvenile Court’s termination of
Father’s parental rights to the Children.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Ralph D.M.
_________________________________
D. MICHAEL SWINEY, JUDGE
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