In Re Tristyn K. - Concurring ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 8, 2010 Session IN RE TRISTYN K. Appeal from the Chancery Court for Anderson County No. 09CH0427 William E. Lantrip, Chancellor No. E2010-00109-COA-R3-PT - FILED JULY 22, 2010 Charles D. Susano, Jr., J., concurring in part and dissenting in part. I agree with the majority that the absence of any evidence of the requirements of the permanency plan[s] sounds the “death knell” for the trial court’s finding that Mother failed to comply with those requirements. If we do not know what the requirements were – and we clearly do not – we cannot intelligently determine whether those requirements were satisfied or not. I completely concur in the majority’s decision to vacate the trial court’s judgment terminating Mother’s parental rights to the extent that decision is based upon a finding that she failed to substantially comply with the requirements of the plan(s). I also agree with the majority that, not having been pleaded, the ground of “persistence of conditions,” see Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2009), cannot form the basis for termination of Mother’s parental rights. The majority is correct in vacating the trial court’s finding of this ground as a predicate for termination. I cannot agree, however, that the trial court’s judgment terminating Mother’s parental rights based upon the “severe child abuse” ground of Tenn. Code Ann. § 36-1-113(g)(4) (Supp. 2009) should be vacated. First, I am convinced that the trial court was focused on the (g)(4) language of Tenn. Code Ann. § 36-1-113 when it found Mother guilty of “severe negligence and abuse as defined by the statute.” Second, the testimony of Ms. Sanders, as recited in the majority opinion, clearly shows – without countervailing evidence – that, with respect to these two young children, Mother was guilty of “severe child abuse” as specifically defined in Tenn. Code Ann. § 37-1-102(23)(A) (Supp. 2009). Third, while somewhat inartfully phrased, the trial court’s language is sufficiently clear to recite what is obvious from the uncontradicted proof, i.e., that this drugged mother placed these young children in a situation “that [was] likely to cause great bodily harm or death.” Id. I would affirm the trial court’s ruling on this ground. Finally, I would affirm the ultimate result of the trial court’s judgment, i.e., termination of Mother’s parental rights with respect to the Child, because I find clear and convincing evidence that termination is in the Child’s best interest. I concur in part and respectfully dissent in part. _______________________________ CHARLES D. SUSANO, JR., JUDGE -2-