In Re: Adoption of Joshua M. M. and Zachary M. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 23, 2014
IN RE ADOPTION OF JOSHUA M. M. AND ZACHARY M.
An Appeal from the Circuit Court for Montgomery County
No. MC CC CV SA12-0779 Ross H. Hicks, Judge
No. M2013-02513-COA-R3-PT - Filed July 28, 2014
The appeal involves a petition for termination of parental rights and adoption. The children
at issue were removed from their parents’ Wisconsin home in 2005 based on abuse and
neglect. Since 2006, the children have been living with the petitioners, the paternal aunt and
her husband. The petitioners filed the instant petition in Tennessee to terminate the parental
rights of both the mother and the father and to adopt the children. After a trial, the trial court
held that the petitioners had established three grounds for termination: (1) abandonment for
failure to visit, (2) abandonment for failure to support, and (3) persistent conditions. It also
found that termination of parental rights would be in the children’s best interest, and so
terminated the parental rights of both biological parents. The parents now appeal.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD, J.,
joined; A LAN E. H IGHERS, P.J., W.S., concurred separately.
Katie B. Klinghard, Clarksville, Tennessee, for the Respondent/Appellants, Kelly M. and
Matthew M.
Sharon T. Massey, Clarksville, Tennessee, for the Petitioner/Appellees, Tracy K. and Karen
K.
MEMORANDUM OPINION 1
F ACTS AND P ROCEDURAL B ACKGROUND
Respondent/Appellants Kelly M. (“Mother”) and Matthew M. (“Father”) have three children
together — Joshua M. M. (born in February 2003),2 Zachary M. (born in May 2004), and
Joey M. (born in May 2010). Mother has two other minor children, for whom Father is not
the biological parent, Austin (16 years old at the time of trial) and Danny (12 years old at the
time of trial). Mother and Father live in Wisconsin, a two-bedroom home with Danny and
Joey. Austin lives, and has always lived, with his maternal grandmother, also in Wisconsin.3
The two children at issue in this appeal are Joshua and Zachary.
In November 2005, Danny, Joshua, and Zachary were living with Mother and Father in their
home in Wisconsin. On November 29, 2005, the state of Wisconsin removed the three
children from the home based on abuse and neglect. At the time, Joshua was about three
years old and Zachary was about 18 months old. The record indicates that the alleged abuse
and neglect at that time included unsanitary housing, that the children lacked food, that the
there was domestic abuse between the parents, and that Mother and Father had locked the
children away in rooms in the home. After removing the children from Mother and Father,
the State of Wisconsin placed Danny with his biological father and placed Joshua and
Zachary in a foster home in Wisconsin.4
1
Rule 10. Memorandum Opinion
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
Tenn. Ct. App. R. 10.
2
Joshua’s birth certificate does not list a father, but we presume for purposes of this appeal that Father is
Joshua’s biological parent.
3
Austin was born with challenging mental disabilities. The record indicates that Mother was only 14 years
old when he was born. In light of these difficulties, Mother voluntarily allowed her mother to raise Austin
from birth.
4
Although the facts surrounding Danny’s situation are not apparent in this appellate record, Mother indicated
at the trial below that Danny was returned to her and Father at some point because Danny’s biological “father
was mentally unstable and unfit to care for him.”
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In August 2006, the Wisconsin Department of Child and Family Services (“Wisconsin
DCFS”) placed Joshua and Zachary in the home of their paternal aunt, Petitioner/Appellee
Karen K. (“Aunt”), and her husband, Petitioner/Appellee Tracy K. (“Uncle”). At the time,
Aunt and Uncle lived in Leesville, Louisiana.
On approximately July 30, 2007, the Wisconsin DCFS filed a Petition for Appointment of
Guardian in the Circuit Court of Kenosha County, Wisconsin (“Wisconsin Court”). The
petition asked the Wisconsin Court to appoint Aunt and Uncle as the legal guardians of
Joshua and Zachary. In November 2007, the Wisconsin Court entered an order granting that
petition. This order was not appealed.
In early 2010, Aunt and Uncle moved with Joshua and Zachary to Clarksville, Tennessee.
They all continue to reside together in Clarksville.
Between 2007 and 2012, the record indicates, Mother and Father filed no legal proceedings
to regain custody of Joshua and Zachary. This changed in early 2012. On January 4, 2012,
Mother and Father filed a motion in the Wisconsin Court to terminate the guardianship of
Aunt and Uncle.
On March 22, 2012, while the Wisconsin Court proceedings were still pending, Aunt and
Uncle (collectively, “Petitioners”) filed a Petition for Adoption and Termination of Parental
Rights in the Circuit Court for Montgomery County, Tennessee. On May 10, 2012, Mother
and Father (collectively, “Respondents”) filed a pro se response to the Tennessee petition for
adoption. In their response, Mother and Father asserted that the Tennessee trial court did not
have jurisdiction because of the ongoing Wisconsin proceedings.
To facilitate resolution of the jurisdictional issues, Judge Ross H. Hicks, who was presiding
over the Tennessee action, and Judge Chad G. Kerkman, who was presiding over the
Wisconsin action, participated in a conference call. After that call, Judge Hicks issued an
order holding the Tennessee proceedings in abeyance pending resolution of the Wisconsin
proceedings. On September 25, 2013, the Wisconsin Court entered an order denying the
Respondents’ motion to terminate the guardianship of Aunt and Uncle. The record does not
indicate that the Respondents appealed the Wisconsin Court’s order.
With the Wisconsin proceedings resolved, on January 4, 2013, the Petitioners filed a motion
in the Tennessee action, asking the trial court to proceed with their petition for termination
and adoption. The Tennessee trial court granted the motion and appointed a guardian ad
litem (“GAL”) for the children. On March 8, 2013, the trial court appointed counsel to
represent the Respondents.
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Discovery ensued. During the course of discovery, the Petitioners sent written discovery
requests to the Respondents; the Respondents did not answer them.
On September 4, 2013, the Tennessee trial court commenced the trial on the petition for
termination of the Respondents’ parental rights and for adoption. By this time, Zachary and
Joshua were nine and ten years old, respectively. They had been in foster care since 2005 and
had lived with the Respondents for over 7 years.
The trial court heard testimony from the Petitioners, the Respondents, and also from the
paternal grandfather, the father of both Father and Aunt. Nine exhibits were entered into
evidence, including the children’s health records, photographs, an August 2006 bonding
assessment, and the children’s school records.
At the conclusion of the trial, the trial court rendered an oral ruling, terminating the parental
rights of both Mother and Father and approving adoption of both children by Aunt and
Uncle. On October 11, 2013, the trial court entered a written order to that effect. The trial
court found that the Petitioners had established by clear and convincing evidence three
grounds for termination: (1) abandonment for willful failure to visit, (2) abandonment to
provide support, and (3) persistent conditions, i.e., conditions that led to the removal of the
children had not been remedied and were not likely to be remedied in the near future.
In its order, the trial court addressed abandonment by failure to visit. It noted that, during
the year 2012, there were only ten telephone calls between the children and Respondents.
Also during 2012, the only personal contact between the Respondents and the children was
in the therapist’s office and once at a funeral in Wisconsin. The trial court observed that the
Respondents “never came to Tennessee to see the children, even when they were provided
visitation.” It found that Respondents chose not to even send the children cards, despite
having had the opportunity to do so.
As to abandonment by failure to support, the trial court made the factual finding that the only
support the Respondents paid was in July 2011 and July 2012. The trial court found under
the circumstances that this was only token support.
Regarding the ground of persistent conditions, the trial court noted that the children had been
out of the Respondents’ care for eight years. Despite the length of time the children had been
out of their custody, the trial court found, the Respondents still had not resolved the problems
that led to the children’s removal.
The trial court then addressed the best interests of the children. Based on the evidence, the
trial court found that the children had virtually no relationship with the Respondents.
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Considering the relevant statutory factors, the trial court held that terminating the parental
rights of both Respondents was in the best interest of both Joshua and Zachary. Accordingly,
the trial court terminated the Respondents’ parental rights and allowed the Petitioners to
adopt Joshua and Zachary. From this order, the Respondents now appeal.
A NALYSIS
Under Tennessee Code Annotated § 36-1-113(c), a parent’s rights may be terminated based
on the following:
(1) A finding by the court by clear and convincing evidence that the grounds
for termination of parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests
of the child.
Tenn. Code Ann. § 36-1-113(c) (Supp. 2013); see State v. Calabretta (In re J.J.C.), 148
S.W.3d 919, 925 (Tenn. Ct. App. 2004). Because the decision to terminate parental rights
involves fundamental constitutional rights, both elements of section 36-1-113(c) must be
proven by clear and convincing evidence. See In re C.M.R., No. M2001-00638-COA-R3-
JV, 2002 WL 192562, at *3 (Tenn. Ct. App. Feb. 7, 2002). The clear and convincing
standard in termination cases requires more than a “preponderance of the evidence” but is
less stringent than the “beyond a reasonable doubt” standard. O’Daniel v. Messier, 905
S.W.2d 182, 188 (Tenn. Ct. App. 1995). Clear and convincing evidence “eliminates any
serious or substantial doubt concerning the correctness of the conclusions to be drawn from
the evidence.” Id. Considering this heightened standard, the appellate court reviews the trial
court’s findings of fact de novo on the record, with a presumption that the trial court’s factual
findings are correct. Tenn. R. Civ. P. 13(d); see In re C.M.R., 2002 WL 192562, at *3;
Graham v. Copeland (In re Adoption of Copeland), 43 S.W.3d 483, 485 (Tenn. Ct. App.
2000); Tennessee Dep’t of Human Servs. v. Riley, 689 S.W.2d 164, 170 (Tenn. Ct. App.
1984). The trial court’s conclusions of law are reviewed de novo, with no such presumption
of correctness. Copeland, 43 S.W.3d at 485.
The grounds for termination of the parental rights of a biological parent are found in Section
36-1-113(g) of the Tennessee Code Annotated. A decision to terminate parental rights may
be based on any of the grounds enumerated in the statute, and only one ground need be
established to support termination. See In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App.
2000), abrogated on other grounds, In re Audrey S., 182 S.W.3d 838, 870-71 (Tenn. Ct.
App. 2005). The three grounds for termination relevant to this appeal are (1) abandonment
for the willful failure to visit during the four months preceding the petition, Sections 36-1-
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113(g)(1) and 36-1-102(1)(A)(i); (2) abandonment for the willful failure to support the
children during the four months preceding the petition, Sections 36-1-113(g)(1) and 36-1-
102(1)(A)(i); and (3) persistent conditions that likely would prevent the children’s safe return
to the Respondents’ home, Section 36-1-113(g)(3).5
On appeal, the Respondents argue that the Petitioners did not prove by clear and convincing
evidence the grounds of abandonment by failure to visit and abandonment by failure to
support. Importantly, the Respondents do not challenge the trial court’s conclusion that the
ground of persistent conditions was proven by clear and convincing evidence. Thus, the
Respondents have waived that issue. See In re Zada M., No. E2010-02207-COA-R3-PT,
2011 WL 1361575, at *5 (Tenn. Ct. App. Apr. 11, 2011); A.T.S., No.
M2004-01904-COA-R3-PT, 2005 WL 229905, at *2 (Tenn. Ct. App. Jan. 28, 2005).
Nevertheless, we will briefly address the evidence on persistent conditions.
The evidence at trial showed that Joshua and Zachary had spent almost eight years — nearly
all of their young lives — in foster care. Seven of those years were spent living with the
Petitioners, many miles away from their biological parents. The evidence at trial, including
the testimony of the Respondents themselves, supported the trial court’s finding that the
Respondents have yet to resolve their domestic relations issues. The Respondents could
testify only that they were in “therapy” to manage those issues. Neither Mother nor Father
articulated anything they had done since the children’s removal that resulted in an
improvement of their situation. At the time of trial, they were living in a two-bedroom home
5
The ground of persistent conditions requires the following:
(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)(3).
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with two of their minor children, and Father testified that Mother was pregnant with her sixth
child. The Respondents conceded that they were struggling financially to take care of
themselves and the two children who lived with them; indeed, they cited their marginal
financial resources as a reason for their failure to visit or support Joshua and Zachary during
the nearly eight years the children had been in foster care.6 The record is virtually devoid of
evidence that the Respondents have improved the conditions that led to the children’s
removal eight years prior.7 Therefore, we agree with the trial court that the ground of
persistent conditions was proven by clear and convincing evidence.
As noted above, “[o]nly one ground for termination of parental rights need be found by clear
and convincing evidence before the court can move on to the best interest analysis.” In re
William S., No. M2011-02602-COA-R3-PT, 2012 WL 2989132, at *4 (Tenn. Ct. App. July
20, 2012) (citing In re C.W.W., 37 S.W.3d at 475). Given the clear and convincing evidence
of persistent conditions and the fact that the Respondents did not appeal the trial court’s
holding on the ground of persistent conditions, “we see no need in prolonging this portion
of the opinion with an analysis of other grounds found by the trial court and appealed by [the
Respondents].”8 Id. We go on, then, to the best interest analysis.
When at least one ground for termination of parental rights has been established, the question
becomes whether the party seeking termination has proven, by clear and convincing
evidence, that termination of the parental rights of the biological parent is in the child’s best
interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004). When a parent has
been held unfit by establishment of a ground for termination of parental rights, then the
interests of parent and child diverge. In re Audrey S., 182 S.W.3d at 877. The focus shifts
from the fitness of the parent to the child’s best interest. Id. Because not all parental
6
Mother was unemployed, and Father worked at an hourly-wage job earning $13 per hour.
7
The only evidence at trial that indicated any slight improvement in the conditions that led to removal of the
children was testimony from the paternal grandfather, i.e., the father of both Father and Aunt, that the
Respondents’ home “appears to be cleaner.”
8
In In re Angela E., 303 S.W.3d 240, 251 n. 14 (Tenn. 2010), the Supreme Court indicated that, in cases on
termination of parental rights in which the trial court terminated parental rights based on more than one
ground, the intermediate appellate court should review the trial court’s findings of fact and conclusions of
law as to each ground for termination, to avoid unnecessary remand. In this case, the termination of parental
rights was on more than one ground. However, unlike the situation in In re Angela E., the parents in the
instant case did not appeal the ground of persistent conditions, so that issue is waived and cannot be raised
in any further appeal to the Supreme Court, regardless of whether the evidence in the record supports any
of the grounds on which the trial court relied. Under those circumstances, it is unnecessary for us to address
the other grounds for termination of parental rights, and we exercise our discretion to go on to the best
interest analysis.
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misconduct is irredeemable, Tennessee’s statutes on termination of parental rights recognize
the possibility that, even where grounds are established, terminating the parental rights of an
unfit parent may not be in the child’s best interest. Id. However, in considering the best
interest element, courts are to resolve any conflict between the interests of the parent and the
interests of the child in favor of the child. Tenn. Code Ann. § 36-1-101(d). “The child’s best
interest must be viewed from the child’s, rather than the parent’s, perspective.” Moody, 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. See Tenn.
Code Ann. § 36-1-113(i). The list of factors in this subsection “is not 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).
On this record, we have no difficulty in concluding that it is in the best interest of Joshua and
Zachary to terminate the Respondents’ parental rights and give these children the opportunity
to be adopted by the Petitioners. Both children have been away from their parents for most
of their lives. The trial court found that the children have no bond with the Respondents.
The evidence at trial clearly supports this finding, and indeed shows that contact with the
Respondents negatively impacts the children’s well being. The evidence also shows that the
Petitioners have lovingly cared for Joshua and Zachary since 2006, and that both children
have thrived in the care of the Petitioners. At the time of trial, both children were doing well
in school and were involved in school activities. The fact that, under all of these
circumstances, the Respondents would initiate the 2012 action in Wisconsin to terminate the
Petitioners’ guardianship of Joshua and Zachary shows that these children need the certainty
and permanency that can come only with termination of the Respondents’ parental rights.
We hold that clear and convincing evidence in the record supports the trial court’s finding
that termination of the Respondents’ parental rights is in the best interest of both children.
C ONCLUSION
The decision of the trial court is affirmed. Costs on appeal are to be taxed to the
Respondent/Appellants Kelly M. and Matthew M., for which execution may issue, if
necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
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