Opinion
No. E2006-01989-COA-R3-PT.
January 9, 2007.
Filed March 13, 2007.
Appeal from the Juvenile Court for Scott County; No. 9949; James Cotton, Jr., Judge.
Judgment of the Juvenile Court Affirmed;, Case Remanded
Max Huff, Oneida, Tennessee, for the Appellant, M.L.S.
Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.
OPINION
In this parental termination case, Father does not contest the grounds for termination, but argues that termination of his parental rights is not in the best interest of his daughter. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court's finding by clear and convincing evidence that termination of Father's parental rights was in the best interest of his daughter. Therefore, we affirm.
I. Background
This case involves the termination of the parental rights of M.L.S. ("Father") to his daughter, L.S.S., born July 16, 2001 ("Child"). Following the birth of Child, Father and Child's mother married. Father was arrested and incarcerated on February 19, 2002; Child was only seven months old at the time. On March 18, 2003, Father pleaded guilty to conspiracy to distribute and possession with intent to distribute 500 grams or more of methamphetamine and 3, 4-methylenedioxymethamphetamine (commonly known as MDMA or Ecstasy). He also pleaded guilty to possession of a firearm during and in relation to a drug trafficking offense. For these crimes, Father was sentenced to ten years in a federal correctional facility.
As part of his plea agreement, the other four counts of Father's indictment were dismissed.
Mother cared for Child following Father's incarceration. However, Mother was later arrested and put in jail, and Child was placed in the care of Child's maternal grandmother, who was allegedly abusing alcohol and drugs. There were also accusations that the grandmother's boyfriend might have been sexually abusing the child. Because of these conditions, on April 28, 2004, the juvenile court placed Child in the custody of the Department of Children's Services ("DCS").
Father had been incarcerated for more than two years at this time.
A second child of Mother, J.L., was also removed from the home by this order. He was placed with a paternal aunt and is not the subject of this appeal.
Following a hearing on June 7, 2004, the juvenile court found Child to be dependent and neglected and granted temporary custody of Child to DCS nunc pro tunc to April 28, 2004. Child was placed in foster care, where she continues to live. On August 12, 2005, DCS filed a petition to terminate Father's parental rights. A bench trial was conducted on July 21, 2006, after which the juvenile court terminated Father's parental rights. The juvenile court found, by clear and convincing evidence, that DCS had proven the existence of two grounds for Father's termination: first, Tenn. Code Ann. § 36-1-113(g)(6) based on Father's incarceration for a sentence of ten years or more before Child was eight years old; and second, abandonment by an incarcerated parent as set forth in Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102. Furthermore, the court found by clear and convincing evidence that it was in the best interest of Child that Father's parental rights be terminated. Father appeals.
Mother surrendered her parental rights to Child on the day of Father's trial.
II. Issue
The issue raised by Father on appeal is whether the trial court erred in finding, by clear and convincing evidence, that termination of Father's parental rights was in the best interest of Child. Father did not appeal the trial court's finding of grounds for termination of his parental rights.
III. Standard of Review
A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn.Ct.App. 2001). Although this right is fundamental and superior to claims of other persons and the government, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn.Ct.App. 2004). This right continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Although "parents have a fundamental right to the care, custody, and control of their children," 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. In re Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App. 1988) (citing Stanley v. Illinois, 405 U.S. 645 (1972)).
Termination proceedings are governed by statute in Tennessee. Parties who have standing to seek the termination of a biological parent's parental rights must first prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1). Secondly, they must prove that termination of the parent's rights is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2). Because the decision to terminate parental rights has profound consequences, courts must apply a higher standard of proof in deciding termination cases. Therefore, to justify termination of parental rights, the party seeking termination must prove by clear and convincing evidence the ground (or grounds) for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W. 3d 539, 546 (Tenn. 2002).
The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d 467, 474 (Tenn.Ct.App. 2000); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). 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 Aug. 13, 2003), no appl. perm. filed, 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); In re J.J.C., 148 S.W.3d 919, 925 (Tenn.Ct.App. 2004). It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn.Ct.App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App. 2001); In re C.W.W., 37 S.W.3d at 474.
In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court's determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). Further, "[o]n an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court's findings." Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn.Ct.App. 1990) (citing Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.Ct.App. 1974)). The trial court's specific findings of fact are first reviewed and are presumed to be correct unless the evidence preponderates against them. The trial court's conclusions of law are reviewed de novo and are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
IV. Analysis
Father asserts that the trial court erred in finding that termination of his parental rights is in the best interest of Child. Tennessee law provides that a court shall consider the following factors when determining whether termination of parental rights is in the best interest of a child:
(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 and 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.
Tenn. Code Ann. § 36-1-113(i). The factors enumerated above are not exhaustive, and "[t]he statute does not require every factor to appear before a court can find that termination is in a child's best interest." Dep't of Children's Svcs. v. T.S.W., No. M2001-01735-COA-R3-PT, 2002 WL 970434, at *3 (Tenn.Ct.App. M.S., filed May 10, 2002).
The juvenile court heard testimony from Father, DCS case manager Kristy Carson, and Child's foster mother.
Father testified that he lived with Mother and Child for the first seven months of Child's life before being arrested and incarcerated. During that time, Father sold illegal drugs and worked as a builder. Father stated that his income from drug sales exceeded the money he earned legally, though he could not provide specific figures. Father admitted that he was addicted to steroids "on and off for a couple of years," and that Mother also had a drug problem. However, Father stated that during the first seven months of Child's life, he took an active role in parenting Child and took the infant with him to the health club for his daily workouts.
While incarcerated, Father has taken numerous classes to better himself. He has been involved in religious education, taken business classes, and also completed courses in parenting and drug education. As part of his plea agreement in federal court, Father is required to complete 500 hours of substance abuse treatment; however, he testified that the treatment will not begin until three years before his release date.
Father is scheduled for release in August 2010; at that time, he will have served approximately eight and a half years of his sentence. He will also be on supervised probation for an additional five years after his release from the federal correctional facility.
Ms. Carson testified that when Child, then three years old, came into DCS custody, she needed extensive dental work and was not potty trained. Ms. Carson stated that Child is now enrolled in Head Start and does very well there. The case worker indicated that Child does not know Father. Ms. Carson stated the following:
[Child] only knows what she's been told about her father. She does not remember other than the time when her grandmother allowed her to speak with him on the phone and she doesn't really know if that was her father in talking with her. She just knows that that was someone that they told her was her father.
As a final witness, DCS called Ms. Foster, who, along with her husband, have been serving as Child's foster family since Child was placed into DCS custody in 2004. Ms. Foster testified that her husband works and that she is a stay-at-home mother. She said that the couple want to adopt Child and that she is happy with their family. When asked how Ms. Foster's family has adjusted to the presence of child in the home, Ms. Foster replied, "They see her already as one of us. She just blends right in."
To protect the identity of the foster mother, the juvenile court referred to her as "Ms. Foster," and we shall do the same.
A report filed by Child's guardian ad litem, John Beaty, which was admitted as an exhibit at trial, confirmed the testimony of Ms. Carson and Ms. Foster. Mr. Beaty visited Child's foster home and met with Ms. Foster and then with Child. Mr. Beaty described Child as outgoing and articulate; he also stated that Child refers to her foster parents as Mommy and Daddy. Furthermore, Mr. Beaty stated as follows:
Based upon my observations, [Child] appears to be very loved and well taken care of by the [Fosters], and she considers their home to be hers as well. . . . [Child] seems to be flourishing in the home in all respects. Furthermore, during the 2 ½ years in which she has been in the home, it is apparent to me that a family bond has developed between the [Fosters] and [Child], and in my opinion, removing her from the home and the [Fosters] would have a devastating impact on her development and well-being.
After considering all of the evidence, the trial court found by clear and convincing evidence that termination of Father's parental rights was in the best interest of Child. The juvenile court stated:
[A]ny waiting on the father to be released from prison in four years, any attempt at delayed reunification would be destructive to the child's well-being.
* * *
The fact that there is no meaningful relationship between father and daughter and that he hardly knows her and she does not know of him except what she's been told according to testimony, the fact that the father has several years of a journey ahead of him, the fact that the father is unable to support, communicate, or function as a father in the prison system, the fact that he has made choices which painfully so cannot be changed at this juncture, the court finds that it is manifestly in the best interest that the parental rights of [Father] be terminated as to the child [L.S.S.].
A careful review of the record leads us to the same conclusion as the trial court. We have previously held that a lengthy delay in a child's return to the custody of its biological parent is a strong indication that termination of parental rights is in the best interest of the child, stating as follows:
This court has frequently and for a long time recognized that, as a general proposition, a child's best interest was served by termination of parental rights where, no matter the cause, there was no reasonable expectation the child could be reunited with a parent in the near future. . . . Termination of parental rights is a prerequisite to adoption which brings with it the security and stability that is of primary importance to children.
In re M.H., No. M2005-00117-COA-R3-PT, 2005 WL 3273073, at *13 (Tenn.Ct.App. M.S., filed Dec. 2, 2005).
Child was seven months old when Father was incarcerated; she has not seen him since then and has only spoken with him on the phone once during that time. In the best case scenario, Father will not be released from prison for another four years; during his incarceration, his ability to communicate and support Child is minimal. Furthermore, before Father can be released, he must complete 500 hours of substance abuse treatment, which he has not even begun. There is no guarantee that Father will succesfully complete this treatment and overcome his drug addiction; even if he does, there can be no assurance that Father will not return to his former occupation as a drug dealer once he regains his freedom. During the time that Father has been unavailable to care for his daughter, Child has spent more than two and a half years with a foster family who loves her and wants to adopt her.
Taking all of this into consideration, there is ample evidence from which the trial court could find that Child's best interest would be served by terminating Father's parental rights, thus giving the child an opportunity to be adopted by her current foster family. We commend Father for taking classes while in prison to better himself. Unfortunately, Father made many bad choices earlier in his life which will result in his incarceration for most of Child's formative years. Although our decision may be painful for Father, our concern here is Child and what is best for her. We must conclude that the evidence does not preponderate against the trial court's finding by clear and convincing evidence that termination of Father's parental rights is in the best interest of Child.
V. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed. This case is remanded to the trial court for enforcement of the trial court's judgment terminating Father's parental rights to L.S.S. and for collection of costs assessed below, all pursuant to applicable law. Costs on appeal are adjudged against the Appellant, M.L.S.