Summary
holding that given the "sparse record," petitioners failed to provide clear and convincing evidence that mother's single visit to the child in the four month period was token under the circumstances
Summary of this case from In re Enrique F.Opinion
No. E2006-00446-COA-R3-PT.
Assigned on Briefs July 24, 2006 Session.
Filed August 3, 2006.
Appeal from the Chancery Court for Knox County; No. 160795-3; Sharon Bell, Chancellor.
Judgment of the Chancery Court Affirmed as Modified; Case Remanded.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, C.M.P.
Sherry L. Mahar, Knoxville, Tennessee, for the Appellees, P.B.L. and C.J.L.
D. Michael Swiney, J., delivered the opinion of the court, in which Herschel P. Franks, P.J., and Sharon G. Lee, J., joined.
OPINION
P.B.L. and C.J.L. ("Petitioners") filed a petition to terminate the parental rights of C.M.P. ("Mother") to her daughter, E.M.P. ("the child"). Petitioners also sought to adopt the child. Petitioners alleged that Mother had abandoned the child by willfully failing to support and visit the child for the four month period immediately preceding Mother's incarceration. As further grounds to terminate Mother's parental rights, Petitioners alleged that Mother was serving a prison sentence of over ten (10) years, and that the child was under eight (8) years of age when the sentence was imposed. Following a trial, the Trial Court determined there was clear and convincing evidence to terminate Mother's parental rights on the basis of abandonment and because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. The Trial Court also concluded that there was clear and convincing evidence that it was in the child's best interests for Mother's parental rights to be terminated. Although we reverse the Trial Court's judgment that Mother had abandoned the child, we affirm the Trial Court's judgment that grounds existed to terminate Mother's parental rights because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. As we also affirm the Trial Court's decision that there was clear and convincing evidence that it was in the child's best interests for Mother's parental rights to be terminated, we affirm the Trial Court's judgment terminating Mother's parental rights.
Background
On March 22, 2004, Petitioners filed a petition for adoption and termination of parental rights. Petitioners sought to terminate Mother's parental right to E.M.P. and, thereafter, to adopt the child. E.M.P. currently is six years old. Petitioner C.J.L. was awarded temporary custody of E.M.P. by the Knox County Juvenile Court on May 21, 2002. When the petition was filed, Petitioners alleged that Mother was incarcerated in the Tennessee Prison for Women in Nashville, Tennessee. Petitioners claimed the biological father of the child was unknown.
Mother originally claimed that Petitioner C.J.L.'s son was the biological father of the child. However, DNA testing revealed that C.J.L.'s son was not the biological father of E.M.P. Petitioners, nevertheless, wanted to proceed with the adoption.
As grounds for terminating Mother's parental rights, Petitioners alleged that: (1) Mother had abandoned E.M.P. by willfully failing to visit her or by engaging only in token visitation for more than four consecutive months immediately preceding the filing of the petition; (2) Mother had abandoned E.M.P. by willfully failing to support her for more than four consecutive months immediately preceding the filing of the petition; (3) E.M.P. had been removed from Mother's home for more than six months by order of the court and the conditions which led to the child's removal still persisted; and (4) Mother was confined in a correctional facility by order of the court as a result of a criminal act, that Mother was under a sentence of ten or more years, and E.M.P. was under eight years of age at the time the sentence was entered. Petitioners also alleged that it was in E.M.P.'s best interest for Mother's parental rights to be terminated.
Counsel was appointed to represent Mother. Mother responded to the petition, generally denying the pertinent allegations contained therein.
The trial was in November of 2005. Mother was transported from prison to the trial so she could testify live. A transcript from the hearing has not been provided to this Court on appeal. However, we have been provided with a Statement of the Evidence pursuant to Tenn. R. App. P. 24(c). The Statement of the Evidence provides as follows:
We have strongly cautioned against appealing a parental rights termination case in reliance on a Statement of the Evidence instead of a transcript. See L.D.N. v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 WL 369275 (Tenn.Ct.App. Feb. 17, 2006), no appl. perm. appeal filed; In re Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628 (Tenn.Ct.App. Aug. 16, 2000), no appl. perm. appeal filed.
(1) [Mother] is the biological mother of [E.M.P.], a minor child born July 14, 2000; [E.M.P.] currently resides with the Petitioners . . . and has resided with [the Petitioners] since August 29, 2001.
(2) [Mother] currently is incarcerated in the Tennessee Women's Prison in Davidson County, Tennessee, serving a term of incarceration for convictions for aggravated assault and possession of more than 0.5 grams of cocaine with intent to sell. [Mother] was sentenced by the Criminal Court for Knox County, Tennessee for these convictions on July 18, 2003; a sentence of three (3) years at 30% as a Standard Range I offender for the aggravated assault conviction, and a sentence of eight (8) years at 30% as a Standard Range I offender for the conviction of possession with intent to sell; the 8-year sentence for possession with intent to sell is to be served consecutive to the 3-year sentence for aggravated assault.
(3) While serving her sentence at the Tennessee Women's Prison, [Mother] testified that she has completed three phases of parenting classes, has taken other classes relating to family matters, anger management, avoiding domestic violence, and avoiding substance abuse. [Mother] further testified that she has had no disciplinary write-ups, has been an inmate advisor, and otherwise has been a "model inmate" at the Tennessee Women's Prison.
(4) [Mother] testified that in 2002, she had agreed to an Order by the Juvenile Court of Knox County, Tennessee whereby temporary custody of her daughter . . . would be awarded to [Petitioners]. [Mother] testified that she was "under stress" at the time that she agreed to [Petitioners] having custody of her daughter, but that she continued to see her daughter after the transfer of custody, up until the time that she was incarcerated for the aggravated assault and cocaine possession charges.
(5) [Mother] testified that while in custody she has attempted to communicate with her daughter, and she has spoken with [Petitioners] on a number of occasions about her daughter, and about visitation with her daughter. . . . On at least one occasion, [Petitioners] brought [E.M.P.] to the Tennessee Women's Prison to meet with [Mother].
(6) From time to time [Mother] has requested and received from [Petitioners] pictures of her daughter. . . .
(7) Mother testified that she has tried to send money to [Petitioners] for her daughter, but this money has been refused.
(8) [Mother] testified that she has attempted to obtain court-ordered visitation with her daughter . . . and has filed documents to that end.
(9) [Mother] testified that upon her release from prison she plans to find employment in the Knox County, Tennessee area, that she plans to live with her mother once released from prison, and that she further wishes to re-establish a relationship with her daughter . . . and have custody of [E.M.P.] returned to her.
(10) [Mother] testified that she has paid [Petitioners] the total of One Thousand Dollars ($1,000.00) for her daughter; conflicting testimony from the Petitioners was that [Mother] intended to use this money for herself.
(11) [Mother] testified that Asa Hobbs, a son of Petitioner [C.J.L], and the man whom she had believed to be the father of her daughter [E.M.P.], was physically abusive towards her ([Mother]) and for this reason she did not visit with her daughter [E.M.P.].
(12) [Mother] admitted on cross-examination that her daughter [E.M.P.], at birth, tested positive for cocaine that she received from . . . [Mother] while in utero.
(13) [Mother] admitted on cross-examination that between September 2002 and May 2003, when she was incarcerated and since when she has remained in custody, she visited her daughter [E.M.P.] only one (1) time, in February 2003.
(14) Petitioner [C.J.L.] testified that she was sixty-three (63) years of age, and that she had been retired since 1998.
(15) [C.J.L.] testified that [E.M.P.] has lived with her and Petitioner [P.B.L.] since August 29, 2001, and that she [i.e., C.J.L.] and [P.B.L.] have treated [E.M.P.] as their own child since that time.
(16) [C.J.L.] testified that [E.M.P.] has been developmentally delayed, and that she could not crawl at the age of fourteen (14) months.
(17) [C.J.L.] admitted on cross-examination that she had worked for Roy Lee Clark, a convicted police murderer. [C.J.L.] further admitted on cross-examination that she had been to see Roy Lee Clark on numerous occasions in a federal prison in Atlanta, Georgia, and that she had taken [E.M.P.] with her on these visits.
(18) [C.J.L.] admitted on cross-examination that she and her husband, [P.B.L.], had taken [E.M.P.] to visit with . . . [Mother] at the Tennessee Women's Prison on at least once occasion since May 2003.
(19) Petitioner [P.B.L.] testified that he was fifty-seven (57) years of age.
(20) [P.B.L.] admitted on cross-examination that he has had a heart attack.
(21) [P.B.L.] admitted on cross-examination that he wanted [Mother] to continue to have a relationship with her daughter [E.M.P.].
Following the trial, the Trial Court entered its order terminating Mother's parental rights. The Trial Court found by clear and convincing evidence that Mother:
a. has abandoned her child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) due to her willful failure to visit her child for a period of four (4) consecutive months preceding filing of the petition to terminate her rights and a period of four (4) consecutive months preceding her current incarceration pursuant to Tenn. Code Ann. § 36-1-102(A)(iv) and due to her willful failure to support her child for a period of four (4) consecutive months preceding the filing of the petition to terminate her rights and a period of (4) consecutive months preceding her current incarceration pursuant to Tenn. Code Ann. § 36-1-102(1) ([A]) (iv); and,
b. has been confined in a correctional facility by Order of the Court as a result of a criminal act, under sentence of ten (10) or more years, and her daughter was [under] eight (8) years of age at the time the sentence was entered by the Court pursuant to Tenn. Code Ann. § 36-1-113(g)(6).
After finding grounds for terminating Mother's parental rights had been proven by clear and convincing evidence, the Trial Court then determined what was in the child's best interest. The Trial Court ultimately determined that there was clear and convincing evidence that termination of Mother's parental rights was in the child's best interest. In reaching this conclusion, the Trial Court discussed Mother's lack of visitation and lack of adequate financial support for the child even before Mother began serving her prison sentence of eleven years. The Trial Court also found that Mother had not made an adjustment of circumstance such that it would be safe or in the child's best interest to return the child to Mother's care. The Trial Court added that Mother had invited "the cause for her incarceration and . . . [thereby removed] herself from the ability to remedy the circumstance[s]". The Trial Court also found that a meaningful relationship had developed between E.M.P. and Petitioners.
Mother appeals claiming the Trial Court erred in concluding that grounds for terminating her parental rights had been proven by clear and convincing evidence. Mother also claims the Trial Court erred in concluding that grounds for terminating Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6) had been proven in that Mother was not confined under a sentence of ten (10) or more years in prison. Finally, Mother claims the Trial Court erred when it concluded that there was clear and convincing evidence establishing that it was in the child's best interests to terminate Mother's parental rights.
Discussion
Our Supreme Court recently reiterated the standard of review for cases involving termination of parental rights. According to the Supreme Court:
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).
The relevant statutory sections addressing the two grounds upon which the Trial Court terminated Mother's parental rights are Tenn. Code Ann. § 36-1-113(g)(1) and (g)(6). These sections provide that the following are grounds for terminating parental rights:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
* * *
(6) The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.
In addition to the foregoing, Tenn. Code Ann. § 36-1-102(1)(A)(iv) defines abandonment as follows:
(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. . . .
Pursuant to the above statute and the facts of this case, the relevant time for ascertaining whether Mother abandoned the child is the four months immediately preceding the time Mother began serving her prison sentence. Mother testified that she visited with her daughter only once during these four months. The Statement of the Evidence provides insufficient information to enable us to determine whether that visitation could be characterized as "token" visitation. While the fact that Mother visited the child only once during these four months certainly is relevant, such a fact standing by itself is not conclusive that visitation was either "token" or that Mother "willfully failed to visit. . . ." Due to the sparse record on appeal and the lack of a transcript, we must conclude that the record, such as it is, does not contain clear and convincing evidence to support a conclusion that Mother abandoned her daughter by willfully failing to visit the child.
Tenn. Code Ann. § 36-1-102(1)(E) defines "willfully failed to visit" as the "willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation."
The next issue is whether Mother abandoned her daughter by willfully failing to support her for the four month period immediately preceding her incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv). The Statement of the Evidence establishes only that (1) Mother tried to send money to Petitioners, but the money allegedly was refused; and (2) Mother sent a total of $1,000 to Petitioners which Mother claimed was for the child's benefit, but which Petitioners claimed really was intended by Mother to be used on herself. Tenn. Code Ann. § 36-1-102(1)(D) defines "willfully failing to support" as the "willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child. . . ." The statute defines "token support" as support that, "under the circumstances of the individual case, is insignificant given the parent's means. . . ." Tenn. Code Ann. § 36-1-102(1)(B). The record contains no information enabling us to determine if the amount of child support sent by Mother was only "token" support. Once again, without this necessary information, we cannot determine whether the Trial Court correctly determined that there was clear and convincing evidence that Mother abandoned the child by willfully failing to support her. This leaves us no choice but to conclude that there is insufficient evidence in the record to support the Trial Court's conclusion that Mother abandoned the child due to her willful failure to provide financial support. The judgment of the Trial Court terminating Mother's parental rights based on abandonment is, accordingly, reversed.
The next issue is whether there was clear and convincing evidence to support the termination of Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6), supra. The undisputed material facts are that Mother was sentenced to serve eight (8) years and (3) years consecutively. Mother argues, however, that these two consecutive sentences cannot be combined for purposes of determining whether she is serving a ten (10) year sentence as required by the statute. We rejected essentially the same argument in H.M.R. v. J.K.F., No. E2004-00497-COA-R3-PT, 2004 WL 1944138 (Tenn.Ct.App. Sept. 1, 2004), no appl. perm. appeal filed. We stated:
Father next asserts that the trial court erred in finding, as an additional ground for termination of Father's parental rights, that Father is serving a sentence of 10 or more years. Again, we disagree.
Tenn. Code Ann. 36-1-113(g)(6) states that parental rights can be terminated upon a finding that the parent has been confined in a correctional facility as the result of a criminal act under a sentence of ten or more years, and that the child in question is under the age of 8 at the time the parent was sentenced. On February 15, 2002, Father was convicted of a sixth DUI offense, a violation of an habitual traffic offender ("HTO") order, and criminal impersonation. Father received a sentence of six years for the DUI, four years for the violation of the HTO order, and six months for the criminal impersonation charge; the four-year sentence was to run consecutive to the six-year sentence. As the child was born in September, 1996, she was under the age of eight when Father was sentenced in February, 2002.
In addition, Father's probation on previous charges was revoked on February 29, 2000, and he was order[ed] to serve eight years in a correctional facility, with 3 years credit for time served. The February, 2002, sentencing documents specifically state that the eight-year sentence runs consecutive to the four-year HTO violation sentence.
It is clear that Father was under a sentence of more than 10 years and that the child was under the age of eight at the time of the sentencing. Accordingly, we find that the evidence does not preponderate against the trial court's finding of this ground for termination by clear and convincing evidence.
H.M.R., 2004 WL 1944138, at *5.
We agree with the reasoning expressed in H.M.R., and conclude that with Mother's eight (8) and (3) year consecutive sentences, she is under a sentence of ten or more years as set forth in the applicable statute.
When terminating parental rights pursuant to § 36-1-113(g)(6) there are only two necessary findings relative to this statutory ground. Specifically, that the parent "has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years," and that the child was "under eight (8) years of age at the time the sentence [was] entered by the court." Tenn. Code Ann. § 36-1-113(g)(6). Here, at the time of the hearing, Mother either was or was not serving a ten year prison sentence, and we have concluded, as did the Trial Court, that she was. Likewise, the child either was or was not under eight years old when Mother's criminal sentence was imposed. Given that the child was born in July of 2000, she unquestionably was less than eight years old when Mother was sentenced to eleven years in prison in July of 2003. We believe that even with the sparse record on appeal, there is sufficient evidence for us to conclude that there was clear and convincing evidence presented to the Trial Court for Mother's parental rights to be terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(6). We, therefore, affirm the Trial Court's judgment insofar as it held that grounds had been proven by clear and convincing evidence sufficient to terminate Mother's parental rights pursuant to § 36-1-113(g)(6).
Having concluded that there was clear and convincing evidence supporting one ground for terminating Mother's parental rights, the next issue is whether there was clear and convincing evidence that termination of Mother's parental rights was in the child's best interest. Tenn. Code Ann. § 36-1-113(i) provides as follows:
(i) In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:
(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.
After reviewing the statutory factors which are applicable to this case, as well as the Trial Court's findings with respect to those factors, we conclude that clear and convincing evidence was submitted to the Trial Court that it was in the child's best interests for Mother's parental rights to be terminated.
In summary, we reverse the Trial Court's decision that Mother abandoned the child pursuant to Tenn. Code Ann. § 36-1-113(g)(1). We affirm the Trial Court's decision that grounds had been proven by clear and convincing evidence to terminate Mothers parental rights pursuant to § 36-1-113(g)(6). We further affirm the Trial Court's decision that it was established by clear and convincing evidence that terminating Mother's parental rights was in the child's best interests.
Conclusion
The judgment of the Trial Court is affirmed as modified, and this case is remanded to the Trial Court for collection of the costs below. Costs on appeal are taxed to the Appellant, C.M.P., and her surety, if any.