In Re: Fridrich E.T.W.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 9, 2011

IN RE FRIDRICH E.T.W.

Appeal from the Juvenile Court for Anderson County
No. J-27423 Brandon K. Fisher, Judge

No. E2011-00884-COA-R3-PT-FILED-MARCH 21, 2012

George R.W., Jr. (“Father”) appeals the termination of his parental rights with respect to his
minor son, Fridrich E.T.W. (DOB: Aug. 27, 2008) (“the Child”). The Department of
Children’s Services (“DCS”) had filed a petition seeking to terminate both parents’ rights
after the Child was taken into custody pursuant to an emergency protective order. He was
subsequently adjudicated dependent and neglected as a result of being subjected to severe
child abuse.1 As to Father, DCS pursued termination on the sole ground of severe child
abuse. Father did not appear at trial. At the start of the trial, his counsel moved for a
continuance based in part on counsel’s assertion that Father had advised her that he wished
to effectuate a voluntary surrender of his parental rights. The trial court denied the motion
and the hearing proceeded in Father’s absence. The court terminated Father’s rights based
upon its finding that the sole ground for termination was established and that termination was
in the best interest of the Child, both findings said by the court to be made by clear and
convincing evidence. Father appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Julie Anne Foster, Oak Ridge, Tennessee, for the appellant, George R.W., Jr.

1
The transcript reflects that Rachel K. (“Mother”) voluntarily surrendered her rights at the start of
the trial. As a result, DCS did not proceed with its allegations against her. Mother is not a party to this
appeal and we refer to her only as is necessary to present the relevant underlying facts.
Robert E. Cooper, Jr., Attorney General and Reporter; Martha A. Campbell, Associate
Deputy Attorney General, Office of the Attorney General, Nashville, Tennessee, for the
appellee, Tennessee Department of Children’s Services.

No appearance by Guardian ad Litem.

OPINION

I.

Father and Mother were never married, but they did live together for some period of
time. The Child, then six-months-old, came into the temporary custody of DCS on December
17, 2008, following a heated dispute between Father and Mother at their house in the
presence of the Child and a half-sibling.2 In its October 2009 adjudicatory order, the trial
court summarized the underlying facts of the case as follows:

A Petition for Temporary Custody of the subject children was
filed . . . by DCS, alleging that the subject children were
dependent and neglected based upon allegations that the Father
had discharged a firearm at the Mother during an altercation
over prescription medication and money . . . .

* * *

Based upon the allegations in the Petition, the Court found that
there was probable cause that the subject children were
dependent and neglected and that there was an imminent risk of
harm to these children if left in their parents’ custody . . . .
Accordingly, a Protective Custody Order was signed on
December 18, 2008, placing temporary custody of the subject
children with [DCS]. Subsequent Orders modified the
temporary custody, placing . . . [the Child] with his maternal
grandparents. At a later hearing, [the Child] was again placed
into the custody of DCS when his grandparents expressed, under
oath, that they were unable to provide adequate care for the
[C]hild.

2
Father is not the father of the half-sibling and that child is not a subject of the petition in this case.

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On March 25, 2009, an Amended Petition for Temporary
Custody was filed by DCS, including allegations of severe abuse
as to [Mother] and [Father].

At the final hearing . . . the Court heard from multiple
witness[es], the most credible of which was [the Child’s half-
sister], who was 7 ½ at the time . . ., followed closely by [the
family’s outreach services worker].

While Father was able to provide some credible testimony . . .
regarding [Mother’s] drug history, he appeared to minimize the
circumstances that brought him before the Court and any role he
had in the allegations in the Petition.

* * *

The Father had lawful prescriptions, but routinely sold them
while the [C]hildren were home. Evidence was also presented
that he had taken the [C]hildren with him when he would go to
sell the pills.

On December 17, 200[8], the Father and Mother had a violent
altercation when the Father confronted the Mother, accusing her
of stealing his pain pills and his money during his recent
incarceration. As the altercation escalated, the Father pulled out
a loaded gun and aimed it at the Mother, confronting her about
her addiction and drug use.

The four month old . . . [Child] was sleeping in his car seat in
the same room in which the Father pointed a gun at the Mother’s
head.

The Father placed the gun to his own head at some point during
the argument, before ultimately pulling the trigger, firing at the
Mother’s head.

The bullet missed the Mother, passing through the wall behind
her into the room behind the living room, exiting the wall just
above the baby bed or playpen in the [Child’s] bedroom.

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 * * *

[T]he police arrived shortly after the incident, and[,] . . . upon
inspection of the house, found that the [Child] was within four
feet of the gun. When questioned, the Father stated that he
could have killed the Mother if he wanted to.

The Father was arrested for aggravated assault and child
endangerment as a result of the incident.

At the conclusion of the adjudicatory hearing, the court found, by clear and convincing
evidence, that the Child was dependent and neglected and the victim of severe abuse by
Father “in that [Father] exposed [the Child] to abuse or neglect likely to cause great bodily
harm or death. . . .”

Father did not timely appeal the October 2009 adjudicatory order. In January 2011,
he moved the court to vacate or modify the order as to its finding of severe abuse. In his
motion, Father alleged that “[d]ue to illness, [his then-attorney] failed to inform [Father] of
his right and opportunity to appeal the findings in the October 26, 2009 order. . . .” The court
denied the motion as being untimely, it having been filed some 15 months after the
challenged order was entered. Further, the court found, “there is no proof of [former
counsel’s] illness . . . that prevented [counsel] from adequately representing [Father]. . . .”
DCS filed its petition to terminate Father’s rights on October 15, 2010. As the sole ground
for termination, the petition cited the finding of severe child abuse in the October 2009 order.

At the February 2011 termination hearing, Father’s counsel was present, but Father
did not appear. After denying the oral motion from his counsel for a continuance, the hearing
proceeded in Father’s absence. The court heard from two witnesses – the Child’s DCS case
manager, Heather Poster, and the Child’s foster mother. At the time of trial, the Child was
two and a half and had resided with the same foster parents for two years. Ms. Poster visited
the Child at his foster home at least twice each month. Foster father worked, while foster
mother stayed at home with the Child. In addition, foster mother cared for her young nieces
every other week and the Child interacted and played well with them. According to Ms.
Poster, the family seemed well-bonded, and the Child called the foster parents “mommy”
and “daddy.” During Ms. Poster’s home visits, the Child constantly reached out for foster
mother and was eager to engage foster mother in his activities.

Ms. Poster was aware that Father had seen the Child on court dates, but said he had
not otherwise visited with him since the Child’s removal in 2008. His failure to visit

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continued even after protective orders prohibiting contact with the Child were no longer in
place. Father had made some effort at setting up a visit with the Child during 2010, but
missed the first scheduled visit and failed to follow through with scheduling another. Since
then, Father had not called DCS to check on the Child’s well-being. Ms. Poster was aware
that Father received VA disability benefits and, although he told her that he was working, he
did not identify his employer. She noted that DCS had worked with Father on the things he
needed to do to secure reunification, but said Father made no progress on his responsibilities
in the first year. Later, after DCS was relieved of making further reasonable efforts toward
reunification, Father did complete a mental health assessment.

Ms. Poster believed that Father continued to present a risk to the Child because, in her
view, he remained as “unstable” as he had been when his conduct lead to the Child’s
removal. Ms. Poster noted that DCS had “indicated” that Father had abused the Child’s
half-sister and Mother had reported to Ms. Poster that Father had been verbally abusive and
threatening toward her. In addition, both parents had been arrested for selling controlled
substances to an undercover officer at Father’s alleged place of employment in June 2010.

The testimony further showed that the Child had lived with his foster parents since he
came to their home when he was six-months-old. Ms. Poster had no concerns regarding the
foster parents’ home environment, their ability to raise the Child, or their financial situation.
She noted that both foster parents had extended family nearby who had helped care for the
Child and even attended team/family meetings at DCS. The Child was healthy but displayed
some speech delays for which he was scheduled to begin speech therapy the month after trial.

At the conclusion of the hearing, the court found that a ground for termination
pursuant to Tenn. Code Ann. § 36-1-113(g)(4) was clearly and convincingly established in
that “[Father] has been found to have committed severe child abuse as defined in [Tenn.
Code Ann. §] 37-1-102 under a prior order of the court.” Upon further finding, again by
clear and convincing evidence, that termination was in the best interest of the Child, the court
granted DCS’s petition and permanently severed Father’s parental rights.

Father timely filed a notice of appeal.

II.

Father presents the following issues for our review:

1. Did the trial court err in denying Father’s motion to continue
the termination hearing?

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 2. Did the trial court err in holding that it is within the
discretion of DCS whether to accept a voluntary surrender of
parental rights?

3. Did the trial court err in concluding that clear and convincing
evidence exists to support the termination of Father’s parental
rights?

III.

We employ the following standard of review in cases involving the termination of
parental rights:

[T]his Court’s duty. . . 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). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is against those findings. Id.; Tenn. R. App. P. 13(d). In
weighing the preponderance of the evidence, great weight is accorded to the trial court’s
determinations of witness credibility, which shall not be disturbed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and may
be terminated upon proof of appropriate statutory grounds. See Blair v. Badenhope, 77
S.W.3d 137, 141 (Tenn. 2002).

This Court has observed:

In order to terminate a parent’s rights to his or her child, the trial
court must make two findings. The court first must find . . . by
clear and convincing evidence, that one of the asserted grounds
for termination has been established. See Tenn. Code Ann. §
36-1-113(c)(1) (Supp. 1998). Once the court has made this

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 finding, the court additionally must find that termination of the
parent’s rights is in the child’s best interests. See Tenn. Code
Ann. § 36-1-113(c)(2) (Supp. 1998).

In re C.W.W., 37 S.W.3d 467, 475-76, (Tenn. Ct. App. 2000). Both of these elements must
be established by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Evidence satisfying the clear and convincing
evidence standard establishes that the truth of the facts asserted is highly probable, State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S.,
filed August 13, 2003), and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M.,
149 S.W.3d 632, 639 (Tenn. Ct. App. 2004).

IV.

In his first two issues, Father challenges the trial court’s denial of his counsel’s
request to continue the termination hearing and questions the authority of DCS to reject a
voluntary surrender of parental rights. Because the motion to continue encompassed Father’s
purported desire to surrender his rights to the Child, we address these related issues together.

As we noted earlier in this opinion, Father did not appear at 9:00 a.m. on February 17,
2011, for the scheduled termination hearing, despite the fact that notice of the hearing date,
place, and time, was filed and sent to his counsel some three months earlier. His counsel,
however, was present at the hearing, and made an oral motion for a continuance on Father’s
behalf. While it is not a matter of record, Father suggests in his brief that his absence was
based upon his confusion as to the time of the hearing. Father further suggests that when
counsel called from the courthouse to speak with him, he advised her that he wished to
appear to surrender his parental rights. Before this Court, Father asserts that “all of the
conditions precedent for a successful voluntary surrender were in place,” yet DCS and the
trial court refused to allow the surrender to proceed.3 Father concludes that “equity demands
that [he] be given the opportunity to voluntarily surrender his rights.”

In the termination order, the trial court addressed the motion to continue and the
voluntary surrender issues, as follows:

3
In his brief, Father explains that his “plan to voluntarily surrender his parental rights was
significantly influenced by the presumed desire of the [C]hild to eventually have the ability to discover his
multi-cultural heritage and . . . learn . . . the origin of his birth name.”

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 As a preliminary matter, the Court notes that [Father] failed to
appear for this hearing. [Father’s] attorney, Julie Foster, made
an oral motion to continue this hearing due to [Father’s] absence
and due to her representation that [Father] had communicated to
her that he wished to surrender his parental rights.

Following oral argument by the parties on the oral motion to
continue, the Court denied the motion in that [Father] had actual
notice of the date, time, and location of this hearing and his
failure to appear was willful. Further, in that pursuant to statute
the Department must be willing to accept a parent’s surrender of
parental rights regarding a child in the Department’s custody,
and the Department having clearly stated that it would not
accept such a surrender in this matter, [Father’s] desire to
surrender his parental rights was not a compelling reason to
continue this hearing.

This court reviews a trial court’s decision to deny a motion for continuance under an
abuse of discretion standard of review. State Dep’t of Children’s Servs. v. V.N., 279 S.W.3d
306, 317(Tenn. Ct. App. 2008). “In order to show abuse of discretion, a party must show
some prejudice or surprise which arises out of the trial court’s failure to grant a continuance.”
Barber & McMurry v. Top-Flite Development Corp., 720 S.W.2d 469, 471 (Tenn. Ct. App.
1986)(citing Com’r of Dept. of Transp. v. Hall, 635 S.W.2d 110 (Tenn. 1982)). Moreover,
“[w]here adequate time for trial preparation and notice of trial date are furnished, the proper
procedure is to file an affidavit showing lack of preparation and a ‘strong excuse’ for
changing the trial date.” Id. (citing Levitt & Co. v. Kriger, 6 Tenn. Ct. App. 323 (1927)).

As an initial matter, we observe that the trial transcript in this case does not include
any part of the proceedings related to the motion to continue. As previously noted, there was
no written motion filed. As a result, we are left to review this issue based on the limited facts
as recited by the trial court in its final order, and the unsupported factual allegations
contained in Father’s brief. This Court has spoken to the constrained nature of our review
under similar circumstances:

With regard to the trial court’s factual findings, as a general
rule, we presume they are correct but will overturn them if we
find that the evidence preponderates against them. However,
“[t]he burden is . . . on the appellant to provide the Court with
a transcript of the evidence or a statement of the evidence from

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 which this Court can determine if the evidence does
preponderate for or against the findings of the trial court.”

In this case, Builder has provided the court with neither a
transcript nor a statement of the evidence. His briefs make
various factual assertions and fact-based arguments, but “the
recitation of facts and argument contained in [appellate briefs]
. . . [is] not evidence. . . . [and] [cannot] be considered in lieu of
a verbatim transcript or statement of the evidence and
proceedings.”

Builder’s failure to provide us with a record of the proceedings
below severely limits our ability to review the issues he raises.

Because of the absence of a proper record, we are limited to
addressing those issues which raise pure questions of law, as
well as any issues challenging the trial judge’s application of the
law to the facts as stated by the judge himself in his
memorandum opinions. See Baker v. Hancock County Election
Commission, No. 15, 1987 WL 7717, at *1 (Tenn. Ct. App.
E.S., filed March 12, 1987) (“No transcript or statement of the
evidence was filed, but we will accept as accurate the findings
of fact in the Trial Court's memorandum opinion”).

Gross v. McKenna, No. E2005-02488-COA-R3-CV, 2007 WL 3171155, at *2-3 (Tenn. Ct.
App., E.S., filed Oct. 30, 2007)(additional internal citations omitted). Applying these
principles to the instant case, we are bound to accept as true the trial court’s finding that
Father, for whatever reason, willfully absented himself from the termination hearing.

The trial court further determined that Father’s wish to voluntarily surrender his rights,
as communicated by him to his attorney, does not constitute a valid reason for continuing the
hearing. The trial court observed that, in its opposition to a continuance, DCS was adamant
that it would not accept a voluntary surrender of rights from Father in this case. The question
becomes, as Father frames it, whether DCS has “the absolute right and discretion to refuse
to accept a voluntary surrender of parental rights by the parent[].” The trial court found it
does. We agree.

Tenn. Code Ann. §36-1-111 sets forth the procedure by which a parent can effectuate
the voluntary surrender of his or her parental rights. The statute provides that a surrender
or parental consent may only be made or given to a prospective adoptive parent, DCS, or a

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licenced child-placing agency. Tenn. Code Ann. § 36-1-111(c). Further, “[a]ll surrenders
must be made in chambers before a judge of the chancery, circuit, or juvenile court except
as provided herein, and the court shall advise the person or persons surrendering the child of
the right of revocation of the surrender and time for the revocation and the procedure for
such revocation.”

With respect to a voluntary surrender, subsection (f) of Tenn. Code Ann. § 36-1-111
is particularly pertinent:

The commissioner, or the commissioner’s authorized
representatives, or a licensed child-placing agency, through its
authorized representatives, may accept the surrender of a child
and they shall be vested with guardianship or partial
guardianship of the child in accordance with the provisions of
this section and § 36-1-102; provided, that the department or
any licensed child-placing agency may refuse to accept the
surrender of any child.

(Emphasis added). “ ‘Department’ means [DCS] or any of its divisions or units.” Tenn.
Code Ann. § 36-1-102(18). Pursuant to the cited statute, DCS acted within its discretionary
authority when it advised the court that it would not accept an offer of voluntary surrender
by Father in this case, even had one been formally made. Under the facts presented, we
cannot say that the trial court abused its discretion in declining to continue the hearing to
afford Father the opportunity to surrender his rights. In our view, Father cannot demonstrate
particular “surprise” or “prejudice” as a result of the denied request for a continuance. Father
had months, if not years, to decide whether to surrender his rights and, by the trial court’s
findings, was well aware of the scheduled hearing but took no action to effectuate a voluntary
surrender at or before the final hearing.

In summary, the evidence does not preponderate against the trial court’s findings and
there is no error in the challenged rulings. We reject Father’s arguments to the contrary. The
court did not abuse its discretion in holding the trial in Father’s absence.

V.

As we have observed, “[a] person seeking to terminate parental rights must prove . . .
that termination is in the child’s best interest.” In re Arteria, 326 S.W.3d 167, 175 (Tenn.
Ct. App. 2010) (citing 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 at 546. In the present case, Father does not contest
the finding of a ground for termination. In any event, our review of the record leads us to

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conclude that the evidence does not preponderate against the trial court’s finding that Father
subjected the Child to severe child abuse. The October 2009 adjudicatory order clearly and
convincingly, in fact indisputably, establishes this termination ground. Had Father
challenged this ground, he would not have prevailed. Accordingly, we move to a
consideration of the best interest of the Child, guided in our review by the non-exclusive list
of factors set forth in Tenn. Code Ann. § 36-1-113(I).4

4
The statutory factors include:

(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child's
best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;

(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;

(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to
have on the child's emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;

(7) Whether the physical environment of the parent's or guardian's home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;

(8) Whether the parent's or guardian's mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
(continued...)

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 Addressing the Child’s best interest, Father contends in his brief that, on his own
initiative, he completed many of the “action steps” outlined in the Child’s initial permanency
plans with the goal of regaining custody. He asserts that he secured stable housing and a
legal source of income, worked toward resolving his legal issues, completed an alcohol and
drug assessment, and has not engaged in further unlawful activity. Father essentially
concludes that given the “efforts and changes” he has made since the Child’s removal,
termination cannot be shown to be in the Child’s best interest. The problem with all of this
is that there is no testimony in the record to support it. Given the lack of proof at trial,
Father’s assertions are simply that – unsupported assertions.

The trial court found that termination of Father’s rights was clearly in the Child’s best
interest. The court observed:

The Court finds that [Father] has not established any meaningful
parental relationship with [the Child] in that [Father] has not had
any visitation to speak of much less any visitation that would
have established a parent/child bond that can even be severed.

It appears the only parents this [C]hild has ever truly known
have been [foster parents]. [Foster mother’s] testimony has
shown this Court she is prepared to act as the parent of this
[C]hild and has been acting as the parent of the [C]hild and this
is a permanent home that is appropriate and in the best interest
of this [C]hild. And therefore, the best interest prong has been
met. So the clear and convincing requirements have been met
and the parental rights of [Father] are terminated.

In response, Father suggests that his lack of visitation and relationship with the Child are not
properly attributed to him. He alleges that “DCS would have assumed such contact was not
allowed and would have thwarted any such efforts.”

First, there is nothing to indicate that DCS acted to thwart Father’s visits with the
Child once visitation was allowed. The record reflects that, as a result of the incident leading
to the Child’s removal, Father was arrested and incarcerated for a time. When he was
released on probation, he was initially prohibited from visiting with the Child by a “no-
contact” order. However, a December 2009 progress report from the case manager reflects
that DCS scheduled a visit for Father in November 2009; Father received a written notice of

4
(...continued)

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the visit and also was sent a reminder letter several weeks in advance. Father failed to appear
for the visit and never contacted DCS to schedule another one. The August 2010 revised
permanency plan also reflects that Father was permitted supervised visits, to be initiated by
him, but no such visits took place. We think Father’s lack of contact and the resulting lack
of a relationship with the Child are directly attributable only to him by virtue of both his
actions and inaction regarding the Child.

Also contrary to Father’s assertions, the evidence indicates that Father had made “no
progress” toward his goals in the permanency plan for over a year, and this did not change
until after DCS was relieved of making any further “reasonable efforts” to assist him. In
addition, there was evidence that, as recently as July 2010, well over a year since the Child’s
removal, Father had continued his criminal behavior when he was arrested (along with
Mother) for selling drugs to an undercover officer at his place of employment.

The proof shows that, despite his rough start in life, the Child is now living in a safe,
comfortable environment and is well-cared for by his foster parents. The Child knows them
as “mommy” and “daddy” and foster mother said that they loved the Child and intended to
continue caring for him as if he were their blood son. Notably, just days before the hearing,
the Child was joined at home by his eight-week-old biological brother whom the foster
parents have also taken in. According to foster mother, she and her husband, who had no
children of their own, planned to adopt the Child “[j]ust as soon as it can be done.”

In summary, the evidence preponderates overwhelmingly in support of the trial court’s
findings and ultimate conclusion. In short, termination of Father’s parental rights and a
chance at permanence with the only “parents” he had truly known were clearly and
convincingly shown to be in the best interest of the Child.

VI.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
George R.W., Jr. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and the collection of costs assessed below.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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