IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 30, 2015
IN RE: AUTUMN L.
Appeal from the Juvenile Court for Claiborne County
No. 2013JV1150 Robert M. Estep, Judge
No. E2014-01240-COA-R3-PT-FILED-MAY 26, 2015
This appeal arises from a termination of parental rights proceeding. The Tennessee
Department of Children’s Services (“DCS”) filed a petition to terminate the parental
rights of Ashley L. (“Mother”) and Aaron B. (“Father”) to their minor child Autumn L.
(“the Child”) in the Juvenile Court for Claiborne County (“the Juvenile Court”). After a
trial, the Juvenile Court entered an order terminating Mother’s and Father’s parental
rights to the Child on a number of grounds. Mother and Father appeal to this Court. In
addition to challenging the termination of their parental rights to the Child, Mother and
Father argue that the case should be remanded to the Juvenile Court because the Juvenile
Court did not enter an order within 30 days of the hearing as required by statute. We
hold, inter alia, that remand is not an appropriate remedy for this noncompliance with
statute and would serve no purpose. We affirm the judgment of the Juvenile Court in all
respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Lindsey C. Cadle, Tazewell, Tennessee, for the appellant, Ashley L.
Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellant, Aaron B.
Herbert H. Slatery, III, Attorney General and Reporter, and, Jordan Scott, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
Background
The Child was born in November 2012. Mother spent the majority of her
pregnancy in jail. Both Mother and Father have a history of criminal activity and drug
abuse. In February 2013, the Child was removed from the parents’ home based on
alleged drug abuse by the parents. Permanency plans were developed and entered for the
parents. Around this time, a great, great aunt of the Child filed a petition for custody. In
October 2013, DCS filed a petition to terminate Mother’s and Father’s parental rights to
the Child. In May 2014, this case was tried. Several witnesses testified, including
Mother and Father. We will summarize the pertinent testimony.
Mother and Father testified to a string of poor choices on their part. Mother
testified to multiple criminal charges such as public intoxication. Mother, who had
sought treatment for drug abuse, failed to attend rehabilitation aftercare and thereafter
relapsed on drugs. Mother’s drug of choice was Opana. Mother stated that she had not
focused on the Child before her incarceration because she was “strung out on drugs.”
Regarding housing, Mother and Father had lived with Mother’s grandmother.
For his part, Father testified to an addiction to painkillers. Father had
visited the Child only once throughout the case. Although Father testified to various
issues which he claimed prevented him from visiting the Child, he was able to travel on
occasion to a suboxone clinic in Johnson City. Mother also asserted various reasons for
her sparse visits with the Child, but she as well managed to get to a suboxone clinic.
Neither parent had paid any child support. Mother worked at “Lazy Days”
when not in jail, and earned enough money for her food, clothes, shoes and other items.
Nevertheless, she paid no support. Father earned money with odd jobs when not in jail.
As of trial, the Child lived with a pre-adoptive foster family. The Child was receiving
treatment for her various health problems, including a lack of mobility in her limbs. The
Child had bonded well with the foster family.
The trial concluded on May 16, 2014. The Juvenile Court issued a
memorandum opinion on June 16, 2014. However, the Juvenile Court did not enter its
final order until July 2, 2014. The Juvenile Court terminated both Mother’s and Father’s
parental rights to the Child on the following grounds, identical for each parent:
abandonment by incarcerated parent for failure to visit, failure to support, and wanton
disregard; abandonment by failure to provide a suitable home; substantial noncompliance
with permanency plans; and, persistent conditions. Under the standard of clear and
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convincing evidence, the Juvenile Court found and held in its detailed order as follows,
inter alia:
The proof established that [the Child] . . . was born to the natural
Mother, [Mother] and [Father], Father. The Child was initially removed
from the parents on February 11, 2013, due to alleged drug abuse by the
parents. [Mother] testified she had visited with the child on three or four
occasions since the child had been placed into custody. Furthermore, the
mother testified that she had been arrested seven (7) different times since
the child was placed into custody. The mother visited the child on April 15,
2013; august 2, 2013; September 13, 2013/ Therefore, the Court finds that
pursuant to T.C.A. § 36-1-102(1)(A)(iv), that the mother has been
incarcerated during part of the four (4) months immediately preceding the
institution of the termination proceeding and has willfully failed to the [sic]
visit the child. The Court finds that the three (3) times the mother saw the
child were “token visitation” as defined in T.C.A. § 36-1-102(1)(c). The
Court finds that the mother has abandoned the child as defined in T.C.A. §
36-1-102.
[Father] testified that he had visited with the child on one (1)
occasion since the child was placed into custody. Visitation was on August
2, 2013. Furthermore, [Father], has been arrested on February 15, 2013, on
a Violation of Probation and remained in the jail until the end of May,
2013. Additionally, he was arrested July, 2013, for a Public Intoxication
and on October 10, 2013, he pled to Resisting Arrest and was flattening his
sentence. Therefore, the father had been incarcerated during part of the
four (4) months, immediately preceding the institution of the termination
proceeding and has willfully failed to visit as defined in T.C.A. § 36-1-
102(1)(A)(iv). He has only exercised “token visitation” as defined in
T.C.A. § 36-1-102(c). Therefore, the Court finds that the father has
abandoned the child as defined in T.C.A. § 36-1-102(1)(A). Based on the
foregoing termination of the parental rights, pursuant to T.C.A. § 36-1-
113(g)(1), is granted based on abandonment by both parents.
Additionally, neither parent testified that they had provided any
financial support for the child since the child was placed into custody.
Therefore, the parental rights of bother [sic] parents are terminated pursuant
to T.C.A. § 36-1-113(g)(1).
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Furthermore, the Court finds that the continuous incarceration by the
parents evidences abandonment as defined in T.C.A. § 36-1-102(1)(a)(iv),
due to wanton disregard for the welfare of the child.
The parents testified that the home that the child would reside, if
returned to the parents would be the home of [Mother’s] Grandmother,
being [Bernice M.]. Ho[w]ever, the parents have continued to have legal
problems that have resulted in their incarceration making it impossible for
the Department of Children’s Services to use reasonable efforts to assist the
parents in home studies and the establishment of a suitable home. They
must be out of jail and living in a home for the Department of Children’s
Service’s workers to observe them in that home to make a finding of
whether or not it is suitable. Therefore, the actions of the parents have
made it impossible to assist. Court finds that the parents have abandoned
the child by failure to provide a suitable home, due to their incarceration as
defined by T.C.A. § 36-1-102(1)(A)(ii).
The family Permanency Plan (Exhibit 5) was ratified on March 20,
2013. The responsibilities of the parents included the following:
1) The mother and father will be drug free.
2) The parents will have all legal matters resolved.
3) The parents will demonstrate they can effectively parent Autumn.
4) The parents will have residential stability and employment.
5) The parents will be emotionally healthy.
6) Autumn will have all medical needs met.
The action steps to meet the above listed desired outcomes included:
1) Alcohol and drug assessment by both parents and follow all
recommendations and submit to random drug screens.
2) Resolve all legal matters.
3) Attend parenting classes.
4) Demonstrate positive parenting techniques during visitation.
5) Provide necessary items for Autumn during visitation, such as diapers,
wipes, and formula.
6) Provide the Department with rent and utility receipts of a safe and stable
home.
7) Parents have a mental health assessment and follow recommendations.
8) Parents participate in grief counseling for the loss of a prior child and
follow recommendations.
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9) Autumn have an EPSD&T and medical, physical/occupation therapy
and Tennessee Early Intervention Services appointments.
10) The parents will attend as many of Autumn’s appointments as possible.
At trial, both parents testified that they [were] not working, have not
completed parenting classes, and both parents are currently serving
sentences. They are flattening their time for the charges that they have
been found guilty. Therefore, the Court finds that the parental rights should
be terminated as stated in T.C.A. § 36-1-113(g)(2), due to substantial non-
compliance by the parents with the permanency plan as defined in T.C.A.
37-2-403.
The Court further finds that the parents’ rights to the child should be
terminated pursuant to T.C.A. § 36-1-113(g)(3), due to persistent
conditions based upon drug use, incarceration, and lack of employment.
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The Court finds that the facts and circumstances in this case warrant
a finding of best interest. The Court begins its analysis of the best interest
of the [Child] by finding that the parents have not 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 Respondent [Mother] or Respondent
[Father]. The Court further finds that Respondent [Father] and Respondent
[Mother] have failed to effect a lasting adjustment despite the reasonable
efforts provided by the Department. Therefore, it does not appear possible
that such a lasting adjustment will occur. Neither parent has maintained
regular visitation or contact with the child. The Court further finds that a
change of caretakers and/or physical environment would likely have a
detrimental effect on the child’s emotional, psychological and medical
conditions. The Court finds that the physical environment of the parents’
home is not healthy and safe for the child such that the parents cannot
consistently care for the child in a safe and stable manner due to their
continuous criminal activity. Neither parent has paid any child support for
the child. The Court finds that the continuation of a parent-child
relationship greatly diminishes the [Child’s] chances of early integration
into a safe, stable and permanent home. The Court finds that it is in the
best interest of the child to be adopted, as the child is in a pre-adoptive
home.
(Format modified). Mother and Father appeal the termination of their parental rights.
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Discussion
Although not stated exactly as such, Father raises the following issues on
appeal: 1) whether the Juvenile Court failed to comply with Tenn. Code Ann. § 36-1-
113(k) by not entering an order as required within 30 days of the conclusion of the
hearing; and, 2) whether the Juvenile Court erred in finding by clear and convincing
evidence that termination of Father’s parental rights is in the Child’s best interest.
Although not stated exactly as such, Mother raises the following additional issues on
appeal: 1) whether the Juvenile Court erred in finding by clear and convincing evidence
that grounds for termination of Mother’s parental rights were established; and, 2) whether
the Juvenile Court erred in finding by clear and convincing evidence that termination of
Mother’s parental rights is in the Child’s best interest.
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
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Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)).
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).
We quote from the termination statute the grounds for termination of
parental rights relevant to this appeal:
(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;
(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:
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(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 a parent or parents or a guardian or guardians, 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 a parent or parents
or a guardian or guardians 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) (2014).
Abandonment means, in relevant part, the following:
(ii) The child has been removed from the home of the a parent or parents or
a guardian or guardians as the result of a petition filed in the juvenile court
in which the child was found to be a dependent and neglected child, as
defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the circumstances
of the child’s situation prevented reasonable efforts from being made prior
to the child’s removal; and for a period of four (4) months following the
removal, the department or agency has made reasonable efforts to assist the
a parent or parents or a guardian or guardians to establish a suitable home
for the child, but that the a parent or parents or a guardian or guardians have
made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child may be found to be
reasonable if such efforts exceed the efforts of the parent or guardian
toward the same goal, when the parent or guardian is aware that the child is
in the custody of the department;
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(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent’s
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child; or
Tenn. Code Ann. § 36-1-102(1)(A) (2014).
We first address whether the Juvenile Court failed to comply with Tenn.
Code Ann. § 36-1-113(k) by not entering an order as required within 30 days of the
conclusion of the hearing. The termination hearing concluded on May 16, 2014. The
Juvenile Court did not enter its final order until July 2, 2014. Therefore, according to
Father and Mother, this case should be remanded to the Juvenile Court. Tenn. Code Ann.
§ 36-1-113(k) (2014) does indeed require in a parental termination case that the court
“shall enter an order that makes specific findings of fact and conclusions of law within
thirty (30) days of the conclusion of the hearing.” The pertinent question is what is to be
done when that directive is not adhered to by a trial court.
We addressed this scenario in In re: M.R.W., No. M2005-02329-COA-R3-
PT, 2006 WL 1184010 (Tenn. Ct. App. May 3, 2006), no appl. perm. appeal filed.
There, we stated:
[T]he trial court’s failure to comply with the portion of the section that
directs it to enter an order within thirty days of the hearing does not divest
the trial court of its jurisdiction. Moreover, in the case now before us,
where the trial court has made definite and detailed findings of fact and
conclusions of law, remand on appeal as requested by Mother would serve
no purpose.
In re: M.R.W., at *4.
Thus, even though the Juvenile Court apparently did not adhere to the
statute, the requested remand is not appropriate. The Juvenile Court already has made
sufficient findings of fact and conclusions of law. To remand would be pointless. See,
e.g., In re: Isobel V.O., No. M2012-00150-COA-R3-PT, 2012 WL 5471423, at *4 (Tenn.
Ct. App. Nov. 8, 2012), no appl. perm. appeal filed; In re: Ella M.I., No. M2013-01543-
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COA-R3-PT, 2014 WL 1778275, at *4 (Tenn. Ct. App. Apr. 30, 2014), no appl. perm.
appeal filed. We, therefore, hold that, while the Juvenile Court did not comply with
statute in the timeliness of entering its order, there is no specified remedy such as remand
required. We do, however, admonish trial courts and parties to adhere to the statutes
enacted by our General Assembly.
We next address whether the Juvenile Court erred in finding by clear and
convincing evidence that grounds for the termination of Father’s parental rights were
established. Father does not raise this issue on appeal. Given Father’s election not to
brief this issue on appeal, we will not respond to arguments never made. However, we
have reviewed the record carefully and conclude that clear and convincing evidence
supports the Juvenile Court’s findings regarding grounds for termination of Father’s
parental rights to the Child.
We next address whether the Juvenile Court erred in finding by clear and
convincing evidence that termination of Father’s parental rights is in the Child’s best
interest. The Juvenile Court made detailed findings as to this issue. Additionally, our
own review of the record supports the Juvenile Court’s findings and ultimate decision.
Father has a history of drug abuse and has shown practically no ability to parent the
Child. The record reveals no reasonable prospect that Father would be able to effectively
parent the Child any time soon, if ever. The Child is being cared for by a foster family
and preserving Father’s parental rights would prove detrimental to the Child.
Considering the relevant statutory factors, we hold that clear and convincing evidence
supports the Juvenile Court’s finding that it is in the best interest of the Child for Father’s
parental rights to be terminated.
We next turn to Mother’s separate issues and address whether the Juvenile
Court erred in finding by clear and convincing evidence that grounds for termination of
Mother’s parental rights were established. Mother challenges some, but not all, of the
grounds for termination of her parental rights as found by the Juvenile Court. Only one
ground must be proven for termination of parental rights. Therefore, conceding one
ground and challenging another is akin to conceding grounds altogether. A parent’s
failure on appeal to challenge one ground for termination when multiple grounds were
found by the trial court relieves us of the need to review grounds. In re: Alexis L., No.
M2013-01814-COA-R3-PT, 2014 WL 1778261, at *2 (Tenn. Ct. App. Apr. 30, 2014), no
appl. perm. appeal filed. Nevertheless, we have reviewed the record carefully and
conclude that clear and convincing evidence supports the Juvenile Court’s findings
regarding grounds for termination of Mother’s parental rights to the Child.
The final issue we address is whether the Juvenile Court erred in finding by
clear and convincing evidence that termination of Mother’s parental rights is in the
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Child’s best interest. The Juvenile Court made its findings relative to this issue which we
quoted from above. Among other things, Mother’s repeated drug abuse and ongoing
pattern of incurring criminal charges unfortunately demonstrate her inability to parent the
Child. There is no support in the record that Mother has undergone any sort of
transformation such that she can parent the Child in the near future. Considering the
relevant statutory factors, we hold that clear and convincing evidence supports the
Juvenile Court’s finding that it is in the best interest of the Child for Mother’s parental
rights to be terminated.
In summary, we find and hold that the evidence is clear and convincing that
(1) grounds exist to terminate the parental rights of Mother and Father to the Child, and
(2) the evidence is clear and convincing that it is in the Child’s best interest for Mother’s
and Father’s parental rights to be terminated. We affirm the judgment of the Juvenile
Court in its entirety.
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
one-half equally against each of the Appellants, Ashley L. and Aaron B., and their surety,
if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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