*1 Mоrton, surety; equipment farm and vehicles still is avail- and their and one-third it, against Appellee, Morton. they pursue if V.C. able to them choose to including any right jury to have a to deter-
mine the issues. James and Mace Mor- claim farm against
ton’s Husband as to the machinery
equipment and was not re- by Trial as this claim
solved Court presented
never to the Trial Court. against James and Mace Morton’s claims In re & AUDREY S. Victoria in- ownership Husband as related to their vehicles, Tennessee, Appeals equipment terest in the farm Court of at Nashville. along against claims Husband with their periodic pay- payments for their down 6,May 2005 Session. estate, pre- ments on the real never were Aug. lawsuit, sented for resolution this attempt the Trial made no properly Court Application Appeal for Permission to Morton to address them. James and Mace by Supreme Dismissed Court separate pursue are free to lawsuit Nov. 2005. Husband, against claims if 'so
these
choose.
Finally, issue we consider Wife’s
regarding appeals by whether filed by Morton
Husband and James Mace appeal
are frivolous. “A frivolous is one merit,’
that is ‘devoid of or one which appeal] can prospect [an
there is little
ever succeed.” Industrial Dev. Bd. Hancock,
City Tullahoma v. 901 S.W.2d (Tenn.Ct.App.1995) (quoting Com Eng’g, Kennedy,
bustion Inc. v: (Tenn.1978)). In the exercise
S.W.2d discretion, our decline to hold the we frivolous, and further decline to
appeals any attorney award fees and costs Wife n appeal.
incurred
Conclusion judgment of Trial is af- Court modified, this cause is re-
firmed as Trial
manded to the Court for collection appeal below. The costs on are costs Appellant, against
assessed one-third Morton, surety;
L.R. and his one-third James and Mace
against Appellants, *10 Nashville, Anderson, Tennes-
Linda M. see, appellant, for the Dixon, Nashville, Jacqueline B. Tennes- L., see, L., Kelly appellees, for the Jason B. and Christina McGowan, Nunnelly, P. Tennes- Susie see, Evans, Springfield, and Jennifer L. Tennessee, Au- Litem for Guardians ad L., drey respectively. S. and Victoria *11 S., child, Audrey April on first OPINION S., Terry eigh- her The child’s father was KOCH, JR., P.J., M.S., WILLIAM C. Shortly teen-year-old boyfriend. after court, in which opinion delivered the CLEMENT, JR., J., joined. birth, Audrey FRANK G. F. and S. child’s Jamie CAIN, J., separate B. filed a mother, WILLIAM Terry S.’s moved into the home concurring opinion. S., Terry also resid- where S. was Wilma arrangement was short-lived. ing.2 This appeal
This involves the termination of biological stealing a mother S.’s parental rights began F. soon Wilma Jamie serving lengthy prison is sentence. who signature. her Jamie forging checks and abuse, criminal Following years drug $3,000from Wilma eventually F. stole over conduct, incarceration, incon- periodic and money in her own deposited and S. sistent attention to the needs of her two Terry S. ended his relation- bank account. children, pled guilty charges mother F. after he discovered ship with Jаmie ag- especially aggravated kidnaping doing. F. Jamie F. had been Jamie what robbery gravated and was sentenced home, Audrey S. taking left Wilma S.’s serve concurrent terms of fifteen and with her. years prison. Following twelve in her in- carceration, the fathers of children both F. was ar- On October Jamie petitions parental filed to terminate her counts of charged rested and with two rights. The court consolidated felony forgery. pending She was released petitions petition these with the mother’s trial, Audrey in her custo- S. remained ad appointed guardians for visitation dy. eventually pled guilty F. to one guardians litem the children. The ad felony forgery placed count of and was joint to termi- petition litem later filed years. for three She soon vio- probation and the rights, nate the mother’s probation, and she was arrested lated voluntarily fathers dismissed their termi- Audrey yet incarcerated. S. was not trial, petitions. Following nation a bench jail, year one old. While Jamie was court entered terminat- orders care of the child’s Audrey she left S. ing the parental rights mother’s both Au- caring for great-grandmother. When grounds. children on three The mother burden, drey proved great S. to be too appealed. has We have determined Audrey great-grandmother asked Wil- S.’s convincing the record contains clear and custody ma to take of the child. Wilma S. support terminating evidence to the moth- brought the child to live parental rights agreed er’s on two of the three S. grounds upon by relied the court and to with her. support the court’s conclusion that termi- a verified Wilma S. filed
nating parental rights the mother’s County Juvenile Court on March Davidson the children’s best interests. 1996 to S. declared have
I. neglected child. al- dependent and She (1) F.: had failed to care leged that Jamie eighteen-year-old high was an Jamie F.1 (2) properly; lacked suffi- gave when she birth to her S. school student customarily parties given and the first letter of their sur- identifies the name 1. This court using initials in termination cases. We their name. departing practice in this case are from parties of the number of and the because appeal, Terry to this 2. At all times relevant similarity Accordingly, we of their initials. mother, Wilma S. has lived at the home of his using identify parties their will in this case *12 daugh- Audrey year April tо S. turned one old on dent funds feed and clothe her later, 10, 1996, (3) (4) days May 1996. Ten on ter; illegal drugs; used had no F., jail Jamie who had been released from place to live when she was released from month, during preceding sometime jail than a camping other trailer with her hearing a motion to set a final on filed (5) uncle; alcoholic and had from stolen petition temporary custody. Wilma S.’s for her relatives so often that she was no responsible that she She asserted was longer welcome in their homes. Wilma S. that had full-time drug-free, she obtained Audrey also noted that S. had suffered a employment, that she had secured inde- origin skull fracture of unknown while of and that pendent transportation, means custody. Accordingly, Jamie F.’s Wilma S. apartment an fit for her she would have juvenile requested the court to award her daughter by hearing the time of the final temporary custody Audrey because S. was petition. on the F. also claimed Jamie dependent neglected a child. person a to proper that she was fit and custody daughter, F. of her and that it Wilma S. feared Jamie would have Audrey interests to be was S.’s best attempt Audrey to reclaim when she S. juvenile a with her. The court scheduled jail. Accordingly, was from released she for hearing on Jamie F.’s motion set requested sought two remedies. She 29,1996. May temporary custody allowing order her retain physical possession of the child hearing, parties May At the pending hearing. a final also sought She juvenile had informed the court restraining barring order Jamie' F. from to have the final agreement reached an hearing petition tempo- on for removing Audrey custody. S. from her Wilma S.’s 15,1996. July rary custody Audrey of S. on juvenile restraining The court entered the F. They agreed had that Jamie would also day against order Jamie F. on the same Au- visitation with be allowed exercise court petition was filed. The also set drey father S. at the home of her own custody preliminary hearing on Wilma S.’s June every starting other weekend 25,1996. request for March juvenile 1996.3 later entered an The Terry petition filed a to establish S. agree- incorporating parties’ order parentage Audrey S. on the date set for ment. He conceded preliminary hearing. not to Sadly, Jamie F. elected exercise Audrey biological that he wаs S.’s father Audrey right her to visitation with S. custody. requested legal exclusive On Despite protesta- her father’s home. juvenile March court éntered “drug-free,” Jamie F. was being tions declaring Terry an order S. abusing drugs still and alcohol. On June awarding tempo- father and biological S.’s formally F. retracted her Jamie rary custody Audrey S. to S. The Wilma on request hearing for a final Wilma S.’s order that the court would not set a stated custody by filing a petition temporary for hearing adjudicatory dispositional final At the “Notice of Non-Suit.” mislabeled temporary S.’s for custo- Wilma F. was involved end of June Jamie requested dy Audrey S. until Jamie F. marijuana, smoking a car accident while hearing. court did not hospital such after which she was sent-to custody of Terry request address S.’s for was later arrested and then released. She marijuana, charged possession Audrey S. good were friends. 3. Jamie F.'s father and Wilma S. drug court’s November property, possession
theft of again paraphernalia. motivating She arrested did not succeed in Jamie order later, days this time on a misde- three to turn her life around and become a F. influ- charge driving Instead, meanor under the parent suitable agreed months, ence of alcohol. After she enter twenty-two van- the next *13 drug program, a treatment the criminal entirely Audrey from life. The ished S.’s out of charges arising the car accident without child turned two and then three drinking driving dropped. her were from her seeing hearing ever once or attempt no to mother. Jamie F. made months, Over the next few Jamie F. was S., Audrey visit or even communicate with drug pro- in and out of several treatment in and there is no evidence the record that complete any not grams. She did them. any support financial for she furnished also chose not to exercise visitation She Fortunately Audrey during that time. S. Audrey In during Sep- with S. this time. S., Terry Audrey for Wilma S. S. were in tember Jamie F. moved with her a willing provide and able to her with mother, allegedly stop so that she would home, healthy, loving allowed her using drugs. living While with her moth- er, grand- regularly to visit with her maternal seeking she filed a motion modification great-grandmother. father and May agreed order to allow her Audrey to exercise visitation at S. her In F. approximately April Jamie mother’s home rather than at her father’s standing met a man named Justin L. while oppоsed home. Wilma S. the motion. telephone They in line at a booth. ex- juvenile The court dismissed Jamie F.’s numbers, changed telephone and Jamie F. following hearing. motion a In Novem- its invited Justin L. to come over to her house 11, 1996, order, juvenile ber court not- night. obliged, that Justin L. and the two complete ed that Jamie F. had failed to began relationship a sexual that lasted for drug several treatment programs month. F. preg- one Jamie became about months, preceding and that Jamie F.’s liaison, nant as a result of this but the problems mother had her own which had F. relationship ended before Jamie real- sixteen-year-old led to the removal pregnant. ized she was When Jamie F. juvenile son from her home. The court pregnancy, informed Justin L. of the he modify found no agreed reason or- being father denied of the child. just der of visitation entered a few months However, September Jamie F. filed a earlier. out of an abundance caution, juvenile relating juvenile Audrey petition court court directed Audrey Following a guardian speak S.’s ad litem to with both visitation with S.4 hearing, juvenile F. court entered an or- Jamie and Jamie F.’s father ensure finding problem September that there was no with visitation der on although previously at home. Jamie F. had been occurring Jamie father’s drug rehabilitation juvenile complete court instructed Jamie F. to ordered to court, returning to she complete drug program program treatment before before returning again. Audrey presented proof to court S. was had no documentation years juve- old that she had done so. The court one-and-one-half when the reappointed Audrey guardian nile court S.’s ad litem entered this order. Audrey every clear from tion with S. other weekend at The nature of this is not time, May already under the the record. At the Jamie F. had the home of her father legally right agreed enforceable to exercise visita- order. if home for arrangement to determine the visitation tion with Jamie F.’s agreed every Sunday. three hours May order needed pay per expressly ordered. F. to reserved the issue of child changed, Jamie $100 S., support for a later date. support week child di- drug F. be referred to a rected Jamie child did not The birth of hér second program, rehabilitation and ordered Jamie parent. By F. into a fit transform Jamie undergo F. to random urine screens for had been evicted from August she drugs. living with apartment where she was later, January L. and was about to be sent back Four months Victoria child, jail.6 gave birth to her second She asked Justin whether Vic- while, him a but daughter January named L. On toria L. could live with *14 28,1999, in could take pro petition F. filed a se Justin L. did not think that he Jamie caregiver at County primary Court seek- over as Victoria L.’s the Davidson Juvenile job required paternity of the time because his often ing to establish Justin L.’s juve- during him to the week. Justin L.’s Following hearing, L. travel Victoria 4, mother, B., offered to care for April nile court entered an 1999 order Christina L. while F. was incarcerat- declaring Justin L. to be the father of Victoria Jamie 1999, juvenile August ed. when L. was granted Victoria L. The court cus- Victoria F., old, only went to tody of L. to Jamie ordered six months she live Victoria B. in area. pay support per Justin L. to child Christina the Clarksville $51.92 week, L. provided and that Justin would jail Jamie F. was released from after L.5 have reasonable visitation with Victoria days. went to approximately thirty She L.,
Meanwhile, actively to reclaim Victoria F. was in- Christina B.’s home Jamie and no means Terry place but she had no to live litigation against volved in S. Both about L.’s Terry petitions seeking support. full of Concerned Victoria she and S. filed welfare, B. to continue custody Audrey F. made all of Christina offered S. Jamie F. could keeping L. until Jamie required support payments child for Victoria job to care for Audrey during get up the four months follow- find and set S. L. entry juvenile Sep- court’s Victoria L. Victoria remained with ing the order, next three- paternal grandmother but she for the tember ceased time, During months. this paying support Audrey for S. as soon as and-one-half occasion, F. L. on juvenile L. The Jamie visited Victoria Victoria was born. court pass weeks at a time to hearing custody petitions on the on but she allowed held 80,1999, calling Audrey birthday. visiting fourth without or even Christina April S.’s L. from paying ad B. to check on Far parties guardian S.’s Victoria L., help support B. to Victoria they informed the court that had Christina litem receiving substantial custody and visi- Jamie F. was instead agreement an on reached B. Not Thus, financial assistance from Christina May tation. all of the costs of awarding only pay did B. agreed court entered an order Christina L., paid to have for she also Terry custody caring exclusive S. Victoria gave F. repaired, car Jamie granting supervised Jamie F. visita- Jamie F.’s support obli- consistently paid support L. and terminated his child L. child for Justin gation. making years. L. ceased the next two Justin payments after the in 2001 regarding the basis 6. The record is unclear temporary custody of Victoria awarded him incarceration. for Jamie F.'s 1999 occasionally paid request, agreed keep Justin L. Vic- money gas, Jamie F.’s temporarily she toria L. at his home F.’s rent the Nashville motel where living. Clarksville area. By By point, F.’s life had Justin L. had become December Jamie begun improve seriously somewhat. had concerned about Jamie F.’s abili- She some, ty an L. On March working been and she had found care Victoria apartment petition in Nashville. After he filed a the Davidson Christina pay security County seeking change B. Court agreed deposit Juvenile rent, some of custody. petition the first and last months’ Jamie F. described life, argued apartment. moved into the new On De- the recent events Jamie F.’s 24,1999, change L. back in amounted to a material cember Victoria moved circumstances, A that it would with Jamie F. little less than a month asserted later, if year Victoria L. turned one old. be in Victoria L.’s best interests Justin custody. full L. granted were Justin Although L. remained in Jamie requested temporary custody pending the custody for most of Jamie hearing final on his and a restrain- problems seriously continued to have ing prevent F. from order to remov- *15 ability affected to L.7 her care for Victoria ing custody. L. from his Victoria suspended Her driver’s license in the juvenile restraining granted the or- 2000, early part of and it remained sus- day der the the was filed and set pended year-and-one-half.8 for at least a 5, hearing April for 2001. show cause F. frequently Jamie drove with Victoria L. order, spite in the car in of the suspension spite restraining of her Jamie license. Jamie F. if pick up asked Christina B. to F. asked Justin L. she could 2, keep L. in April Victoria for a month June 2000 L. for a visit on 2001. Victoria and again August for six weeks in and L. allowed her to do Inexplicably, Justin September retrieving two-year-old 2000. Christina B. and mem- so. After Victoria family L., kept directly bers of her also L. L. from Jamie F. drove Victoria Justin еvery By weekend in 2000. the end of to her church where minister counseled 2000, F. in experienced Jamie had a self- her that she needed to turn herself described police probation “nervous breakdown.” for the violation. Ja- in, and the agreed mie F. to turn herself following year period marked police called to the church. Two were precipitous prob- decline for Jamie F. Her from the church went to Justin ministers lems first came to a in head March 2001. workplace, informed him of the situa- L.’s month, During this Jamie F. was involved tion, L. pick up and asked him to Victoria in an automobile driving accident while arrived, police Once Justin L. arrested license, a suspended and she was evicted police Jamie F. Victoria L. watched as the apartment for a second time from the away. F. handcuffed Jamie and took her living where she was L. In Victoria addition, again hearing she had once violated the cause as proceeded The show probation facing April terms of her and was scheduled on 2001. Jamie F. was prospect returning jail. present hearing. April Jamie not at the On On what, any, suggesting It is unclear from the record if 8. There is evidence in the record may actu- that Jamie F.'s driver’s license have involvement Jamie F. had in S.’s life merely suspend- ally revoked rather been than during 2000. ed. juvenile by p.m. The court ordered juvenile court entered an order 5:00 temporary custody continuing undergo Justin L.’s F. and Justin L. to both Jamie restraining L. order of Victoria drug per- screens and directed CASA9 juvenile F. The court also against Jamie study parents form a home both ordered that Jamie F. be allowed reason- determining proper in assist the court supervised visitation with Victoria L. able custody arrangements and visitation L.’s temporarily suspended Justin L. Victoria support obligation. child F. During July August Jamie spent forty days jail for the some visitation with L.10 exercised Victoria probation violation. Her brother was al- However, proceed not as the visitation did jail bring lowed to L. to the Victoria by July court’s contemplated Following her during visitation this time. 2001 order. Justin L. and members mid-May Jamie F. lived release F., family to meet Jamie his would drive Byrdstown, Tennessee. with her mother care, then her leave Victoria Although employment, she found she did F. when she returned drive to meet Jamie any monеy sup- L. to not send Justin late L. Jamie F. was often hours Victoria May port Victoria L. On on at least one meetings, for these juvenile court an order terminat- entered occasion, did not have a car seat for she support obligation be- ing Justin L.’s child pick up. came to L. when she Victoria custody had L. The cause he pay any of the child Jamie F. did not juvenile court also determined that Justin court’s support required any not in arrears on of his court- L. was July during 2001 order this time even support payments child for the ordered employed. though gainfully she was cus- years gained temporary two before he *16 F. moved back to Nashville and Jamie tody of Victoria L. lived in a job August found a in 2001. She later, than one month Jamie F. Less moving into for a month or so before hotel juvenile in court seek- petition filed a the juvenile The court duplex a with a friend. L. from ing emergency removal of Victoria hearing on L.’s held a final Justin requesting tempo- Justin L.’s home and 14, custody September a on change for Following a rary custody of Victoria L. hearing, At F. claimed 2001. the Jamie juvenile July a hearing, the court entered week, L. Victoria once that she visited denying request 2001 order Jamie every day, and had been talked to her juvenile emergency removal. The However, Ja- paying support. some child L.’s cus- temporary court continued Justin proof that she had no acknowledged mie F. L., F. to tody of Victoria ordered Jamie support any pay- that she had made child week, per child pay support $37.15 ments, that had not and she admitted she weekly F. visitation with awarded Jamie in living arrangements maintained stable provided L. The order that Jamie Victoria L. born. years since was Victoria up picking would exercise visitation F. relationship with about her When asked every Tuesday at 8:00 a.m. L. Victoria at first daughter, Jamie F. returning daycare her to her older daycare from and to what Special The record is unclear whether Appointed Advocate 9. The Court 10. ("CASA”) group specially Audrey trained com- in S.’s is a Jamie F. was involved extent munity who available to be Audrey volunteers are August S. January to 2001. life from appointed by advocate on behalf the courts to years April six old on turned judicial neglected of abused and children proceedings. card, forсing her to reveal her approxi- claimed that she saw S. ATM However, mately number, once week. on further F. personal identification Jamie questioning, she that it conceded had been accomplice and her stuffed the victim about month since she had seen They trunk of her car. drove to a own money bank to withdraw from the victim’s account, stopped buy tape duet to bind L. and Justin Christina B. also testified Af- legs, the victim’s and returned home. juvenile hearing. court asked securing legs ter the victim’s with duct B., pri- Christina who had as the served they returned her to the trunk of her tape, mary caregiver for L. for approxi- Victoria car and went inside. mately three months over two many months weekends since car When the victim realized that then, if willing she would serve as parked longer and that she could no granddaughter’s co-custodian. voices, triggered hear her assailants’ she B. agreed, Christina and on October dropped latch in the trunk that the back juvenile court entered an order escaped of the car. from the car seat She designating Justin L. and Christina B. as nearby and hobbled to a street where a joint directing Victoria L.’s custodians and passing motorist and cut her free stopped primarily should live calling police before police. When Justin L. The granted court Jamie arrived, they found Jamie F. and her ac- days unsupervised three visitation complice trying to hide in a bedroom. with Victoria L. every other week. Based They apparently were unaware that their F.’s testimony that her current escaped. victim had arrest- authorities week, income was approximately per $300 accomplice ed Jamie F. and her and inter- pay ordered Jamie F. to According them separately. viewed support per child week Victo- $51.92 police, they kidnaping both admitted to the ria L. addition, robbery. they told the February On 2002—less than five police planning had been to kid- months appeared after Jamie F. in the nap person and rob another and then roll juvenile court and insisted that she was fit the first victim’s car into the Cumberland *17 full custody have of Victoria L.—Jamie up River with both victims tied inside. At F. accomplice and a male kidnapped and arrest, Audrey the time of F.’s S. Jamie a gunpoint. robbed woman at Jamie F. old, just years six L. had was Victоria victim, co-worker, invited the a former turned three. come to her home. the victim ar- When rived, year spending After a little more than a Jamie F. led her into a back room trial, jail awaiting F. into where Jamie entered accomplice her accosted her with a gun. plea agreement prosecution. a with the gun Jamie F. held the on the victim 14, 2003, accomplice February pled guilty while her the On she bound victim’s aggravated rifling charges especially kidnap- hands with stereo wire. After through purse, taking ing11 aggravated robbery12 the victim’s her in the weapon,” person especially "[a]ccomplished deadly 11. A commits the crime of with 39-13-305(a)(l) (2003). § Tenn.Code Ann. aggravated kidnaping when he or she "know- ingly unlawfully removes or confines another robbery Aggravated the "intentional or is substantially so as to interfere with the other’s knowing property person from the theft 39-13-302(a) liberty,” § Tenn.Code Ann. putting person in another fear,” violence or (2003), and the removal or confinement is 39-13-401(a) (2003), Tenn.Code Ann. Audrey visitation S. County. Court for Davidson court-ordered for Criminal with every F. to concurrent three week and with Victoria court sentenced Jamie hours every fifteen for the for years especially days terms of L. three other week. How- ever, conviction and aggravated kidnaping preceding five her months incarceration, years aggravated robbery 8, for the February twelve Jamie F. once, 25, conviction. Jamie F. received credit for only December saw on already spent jail or so she year had only slightly 2001. She saw Victoria L. trial. noted awaiting The court that Jamie often, more and her last visit with Victoria statutorily for ineligible early F. was re- 25, L. was also on December 2001.14 to her parole respect lease on with- fifteen- 6,May F. filed Jamie On year especially aggravated for sentence juvenile seeking visi petition kidnaping.13 February On or about peti Although tation with Victoria F. to the Ten- Jamie was transferred L., only tion the fa mentioned Victoria Prison for her nessee Women serve present thers of both children were years old sentences. S. was seven petition. Terry S. and hearing on sentenced, F. when Jamie was want Justin L. said that did not their L. was four. young brought prison to the children approximately In the five months be- juvenile visitation. The court statеd that September tween the 2001 final hear- only way they prevent could Jamie F. change L.’s for a ing petition on Justin file seeing from the children was to February 8, custody and F.’s rights.15 petition parental to terminate her incarceration, Jamie F. made arrest court took no action on Jamie children, support no effort to either of F.’s for visitation at that time. only made minimal efforts to visit and she July L. filed a F. On Justin employed during them. Jamie was financially petition to terminate Jamie time and admitted that she L., rights August pay support for her to Victoria able to children. addition, and filed a Terry entitled to S. followed suit Jamie was exercise may "[ajccomplished statement when the theft is 15.While court’s deadly weapon,” §Ann. description Tenn.Code 39-13- of the law in some an accurate 402(a)(1) (2003). jurisdictions, Dwyer, A but see James G. Tax- Existing Rights in onomy Children’s State 40-35-501(0(2) (2003) 13. Tenn.Code Ann. Making Relationships, About Decision Their particularly specifies crimes eleven heinous & & 932-33 n. Mary Wm. Rts. J. Bill parole Especially which is unavailable. (2003) Taxonomy Chil- [hereinafter aggravated kidnaping included on this list. ], Rights descrip- it is not accurate dren's an 40-35-501(i)(2)(C). per- A *18 Tennessee, tion the law in Tenn.Code Ann. any committing son convicted of these ("After (2001) making an award 36-6-301 percent “shall serve one hundred crimes (100%) shall, request custody, upon the court imposed of the sentence the court rights parent, grant such the non-custodial and less sentence credits earned retained.” and the non- visitation as will enable the child 40-35-501(0(1). §Ann. parent-child parent to custodial maintain January L. on 14. Victoria turned three finds, relationship the after a unless court to Victo- 2002. Jamie F. was scheduled have likely endanger hearing, that visitation is visitation, day B. L. that for so Christina ria health.”) physical or the child's emotional parly planning for moved a she was Victoria added). (emphasis up birthday a week. Victoria L.’s third L.’s any birthday came went without word and from, by, appearance less Jamie F. much an petition to terminate Jamie F.’s an order re- Appeals Criminal entered 18, 2003, rights Audrey August S.16On manding the case to the trial court. How- juvenile the court entered an order consoli- ever, Appeals the of Criminal de- Court dating petitions the fathers’ termination request clined to instruct the Jamie F.’s 6,May petition with Jamie F.’s for proceed though peti- trial court to as the hearing. visitation for an initial Sep- At a post-conviction tion for relief had been hearing, tember 2003 the court timely must filed and noted this issue appointed guard- counsel for Jamie F. and litigated the trial court.18 ians ad litem for L. Victoria trial scheduled for termination 12, 2004, January guardians On the ad 29, 2004, the fall of 2004. On June Justin joint petition litem filed a to terminate L. L. committed suicide. Victoria was five parental rights, Jamie F.’s and the fathers years immediately old. She went live voluntarily pe- dismissed their termination brother, with Justin L.’s L. L. Jason Jason titions.17 wife, L., Kelly already and his had one Following filing joint the termi- child, daughter. a four-month-old petition, nation Jamie F. filed a notice of couple long caring had been involved in appeal in the criminal challenging court living L. Jason was still especially her convictions for aggravated kept home B. with Christina when she kidnaping aggravated robbery, Victoria L. for three-and-one-half months appointed the court represent counsel to in 1999 and two-and-one-half months appeal. Jamie F. in her ap- Jamie F.’s spent and Victoria L. often weekends pointed counsel later filed a motion in the couple’s at the home after were mar- Court of Appeals requesting Criminal ried September Following on the case be remanded to the trial court death, couple Justin L.’s decided to with instructions to treat Jamie F.’s notice 24, 2004, adopt August Victoria L. On appeal timely as a petition post- filed granted couple’s request conviction relief under the Tennessee Act, co-petitioners joint to be added as to the Post-Conviction Procedure §§ Code petition 40-30-101 to termination based on status 40-30-122 their (2003). 13, 2004, August On prospective adoptive parents Court of as the of Vic- Terry 16.Justin L. procedure S. filed their termi- unclear whether this remains avail- petitions prior nation Supreme adoption proceedings, gen- the Tennessee able in albeit on a Court's 2004 decision that under the der-neutral basis. See Tenn.Code Ann. 36- current statutes, 1-115(a) (2001) biological parent ("Any person eighteen over does (18) years age may petition chancery statutory standing petition not have to file a adopt person"). ques- parental rights circuit court to This terminate the of a child's other Marr, Marr, presentеd tion was not biological parent. in Osborn v. Osborn v. (Tenn.2004). accordingly, Supreme Court Tennessee S.W.3d did not address it. Assembly expressly General enacted a statute allowing the mother of a child born out of child, expressly adopt 17. The termination statutes confer wedlock to file a standing guardians peti- thereby effectively ad to file terminating biological litem seeking parental rights. parental rights. tions termination of May father’s Act of *19 1, 36-1-113(b) § (Supp.2004). Tenn.Code Ann. ch. 1971 Tenn. Pub. Acts 877. However, provision repealed this was in 1995 part comprehensive appeal as of a revision of the 18. The record on in this case does not governing adoption any laws and termination of the contain indication of the outcome of parental rights. May following proceedings Act of ch. in the criminal case 1995 Tenn. Pub. Acts 952. It is remand. guilty only court had a bad lawyer toria L.19 The also allowed because she join However, co-peti- Christina B. to the suit aas and on ques- was “tricke[d].” on her status as L.’s tioner based Victoria tioning, F. forced to admit that Jamie was legal co-custodian. the occurred February 2002 crimes at her home, crimes, present that was for the she September the On gun and that the used in the she owned day-long bench on the held trial addition, crimes. refused to take she joint petition termination and Jamie F.’s responsibility history for her chronic petition for visitation. Jamie F. testified drug repeated failure to abuse and her length. She confirmed most of the programs take of treatment so advantage joint her in charges against leveled from she could free herself addiction She petition. acknowledged termination parent a fit for her children. become repeated her incarcerations and run-ins law, history drug with the her extensive attempted Jamie to F. also excuse her abuse, support and her chronic failure to support consistent to her children. failure financially her even children when she was explained pay that she chose not She acknowledged to do so. She also two able support child even she had abili- when accidents, tickets, multiple car traffic ty do as though so because she “felt lengthy suspensions of her driver’s license. [i.e., taking care of people her two that she had Shе conceded been evicted of means” and plenty children] had living twice while Victoria L. was with her my money “wouldn’t little amount of miss and that she had had numerous residences if F. I didn’t to send it.” Jamie contin- get relatively short duration her chil- after ued, sometimes, or most of the time I “So born. She stated that she had dren were paid things.” was—I other two “nervous breakdowns” and suf- had panic only from severe attacks. The fered only Jamie one other presented F. wit- joint allegation termination testify in younger ness—her brother-—-to consistently disputed that Jamie was paren- termination of her opposition charge willfully that she had failed extremely rights. tal In his brief testimo- during L. visit with S. Victoria ny, he Jamie F.’s claim that corroborated immediately preceding months four visited L. three or four she times F., According her incarceration. to Jamie during the of 2001 while was summer she children she visited both “all the time” her living Byrdstown mother. No Finally, F. ad- during period. Jamie family other F.’s member Jamie attend- was “fine” with Ter- mitted S. ed the termination trial or testified on S., L., ry and Wilma that Jason F. acknowledged Jamie behalf. L., B. Kelly good and Christina had taken spoke that she to her father or longer no care Victoria anyone family, on father’s side of her that her mother and her and she conceded testimony much of Jamie F. devoted her a single two had not attended brothers for her alleged excuses actions. She custody hearing with or visitation everyone legal but herself for her blamed years. claimed to previous She have problems. example, maintained For she mother’s good relationship with her side accomplice February in the that her on family, conceded cross- robbery respon- but she kidnaping solely her mother nor pled and that examination that neither sible for those crimes she petitions seeking expressly statutes confer file The termination 36-1-113(b). adoptive rights. standing prospective parents to Tenn.Code Ann. *20 regular two-parent had as loving, her brothers visited her on with a home as soon during the preceding basis two-and-one- possible. attorney ques- Jamie F.’s When years while she was half incarcerated. in F.’s terminating tioned the value Jamie parental in the rights absence of someone remaining The at the termi- witnesses place Audrey F.’s S.’s step to into Jamie as all suppоrted position nation trial the mother, Terry his S. testified that he and guardians ad litem that F.’s the Jamie girlfriend had years of three-and-one-half rights parental should be terminated. the matter she already discussed and that Terry primarily S. and Wilma S. testified ready willing adopt Audrey and to S. S., L., was respect Audrey to Jason and L., parental if Kelly regard- rights and Jamie F.’s were termi- Christina B. testified L. Their ing testimony Victoria established nated. children and happy both were well-
adjusted they living Following and that in sta- the ter were conclusion of the ble, trial, loving juvenile homes where their and the physical mination court entered being emotional needs were addi- met. well thorough, two written orders on Octo tion, they they testified that it believed ber 2004 and November 2004 termi important to was S. and Victoria nating parental rights Au Jamie to life, L. to involved each and other’s L., drey Victoria respectively. S. and The they already had allowing been the sisters juvenile convincing court found clear and to and visit communicate with each other statutory existence of evidence of the three regular testimony on a basis. also Their (1) abandonment; grounds for termination: that with established one nei- exception,20 (2) (3) conditions; persistence incar had ther child asked about F. the years ceration sentence of under ten years February two-and-one-half since her imposed more when a child the is under 8, 2002 incarceration. age of eight. Tenn.Code Ann. 36-1- (6). (3), 113(g)(1), After considering testimony The of these witnesses estab- statutory nine factors listed their long-term lished to dedication 1—113(i) and other factors of Audrey welfare L. S. and Victoria 36— by raised evidence presented their commitment to for them in providing trial, termination court found the future. Jason L. Kelly L. testified convincing ter clear and evidence that deep love for their Victoria L. and the rights mination of Jamie F.’s strong relationship already that was devel- interests of oping between L. best Victoria and their other They granted Victoria L. The daughter. testified that intend- joint petition guardians peti ed to file a ad litem’s adopt Victoria as parental rights petition soon as Jamie F.’s tion and Jamie F.’s were denied Terry appeale terminated. S. also testified re- visitation with Victoria L. Jamie F. garding provide Audrey his intent S. d.21 recently L. had R.App. 20. Victoria mentioned Jamie P. 14 motion for consideration Kelly L. before the school on start of post-judgment requests facts. The motion August Kelly surprised quite 2004. L. was filing petition their that we consider of a because she had not L. ask heard Victoria adopt Chancery L. in the Court biological preceding about mother in the County May copy Cheatham 2005. A years. two-and-one-half petition is attached to the motion. filing "capable of this is a fact parties filed two motions in this court ready posi- demonstration" that affects “the following May argument. On oral parties subject or the tions of the matter May Kelly Jason L. L. filed a
860 M.J.B., App.2004); 643,
II.
In re
140 S.W.3d
(Tenn.Ct.App.2004).
652-53
Reviewing
The
For
StaNdards
Termination Orders
proceedings in Ten
Termination
parent’s
A
biological
right22
governed by
nessee are
statute.
Parties
or her
custody
the care and
of his
child is
standing to
termination
who
seek the
have
judicially
among
recog
the oldest of the
rights
a biological parent’s parental
liberty
protected by the
nized
interests
First,
things.
they
prove
must
two
must
the federal and
Due Process Clauses of
of at least one of
prove the existence
Granville,
v.
constitutions.23 Troxel
state
grounds
for
termination.24
statutory
65,
2054, 2059-60,
57,
120
530 U.S.
S.Ct.
36-1-113(c)(1);
§
In
Ann.
re
Hawk,
(2000);
L.Ed.2d 49
Hawk v.
147
D.L.B.,
360,
(Tenn.2003);
367
118 S.W.3d
573,
(Tenn.1993); Ray
855 S.W.2d
578-79
Garrett, 92
at 838. Sec
Jones v.
S.W.3d
726,
(Tenn.Ct.App.
Ray,
v.
83
731
S.W.3d
ond,
terminating
they
prove
must
2001).
this
fundamental and
right
While
is
parent’s
rights is in the child’s
parental
persons and
superior to the claims of other
§Ann.
best
36-1-
interests.25 Tenn.Code
government,
it is not absolute. State
A.W.,
541,
113(c)(2);
114
In re
S.W.3d
545
C.H.K.,
v.
154
Children’s Servs.
Dep’t of
C.W.W.,
In re
37
(Tenn.Ct.App.2003);
586,
(Tenn.Ct.App.2004).
589
It
S.W.3d
467,
(Tenn.Ct.App.2000);
475-76
S.W.3d
only
interruption
long
continues without
as
M.W.A., Jr.,
620,
In re
622
980 S.W.2d
it,
relinquished
has
aban
parent
as a
not
(Tenn.Ct.App.1998).
it,
engaged
requiring
doned
conduct
civil
carries with it
limitation or
Blair v. Ba
No
action
its
termination.
137,
(Tenn.2002);
graver consequences
141
sev
denhope, 77
than
S.W.3d
(Tenn.Ct.
S.M.,
family
irretrievably
er
ties
and forever.
149
638
In re
S.W.3d
properly
post-conviction
the criminal
sub-
sues
relief in
the action”
is therefore
post-
ject of a
consideration of
courts.
motion for
14(a).
R.App. P.
judgment facts. Tenn.
notwithstanding
right
the mari
22. This
exists
addition,
petition merely
filing
bol-
biological parents
tal status of the child’s
unequivocal
Kelly
testi-
sters Jason
L.’s
biological parent
established or
where a
has
mony
at the
trial that
intend-
relationship
attempting
establish
adopt
soon as Jamie F.’s
ed to
Victoria L. as
Robertsоn,
U.S.
the child. Lehr v.
According-
parental rights were terminated.
463
2985, 2993-94,
Because of the
of their
Garrett,
consequences,
parent’s parental rights. Jones v.
terminate
proceedings to
838;
Valentine,
rights
at
In re
parental
require individualized deci 92 S.W.3d
548-49;
S.M.,
making.
Swanson,
sion
In re
2 S.W.3d at
at
re
S.W.3d
S.W.3d
M.J.B.,
Accordingly,
640;
TenmCode Ann.
36-
In re
III.
Prior
time, there
relating
were statutes
Terminating
Grounds
rights
of parental
the termination
differ
Rights
F.’s Parental
code,
significant
parts
ent
as
statutory
Any one of the nine
only
of the law could
found
pects
grounds
parental rights
for termination of
*23
Messier,
v.
O’Daniel
decisions.
905
court
1—113(g)
§
is
in Tenn.Code Ann.
listed
36—
2 (Tenn.Ct.App.1
&
186
n.
S.W.2d
terminating
an
support
sufficient to
order
995).28 The
legislation
1995
consolidated
in the
parental rights where termination is
parental
of
grounds
termination
D.L.B.,
In re
interests of the
best
child.
rights
single
in a
Tenn.Code Ann.
statute:
C.W.W.,
367;
In re
at
37
118
S.W.3d
36-l-113(g).
ground
§
in
The first
listed
relied
at 473. The
court
S.W.3d
statute,
frequently
and
most
the one
stаtutory grounds
of the
in termi
three
on,
relied
is abandonment.
Tenn.Code
(1)
parental
rights:
nating Jamie
Schmied,
§
1—113(g)(1);
Ann.
Diana
36—
(2)
abandonment;
persistence
of condi
Roadmap Through
A
Tennessee’s New
(3)
tions;
long-term
and
incarceration.
Statute,
Adoption
27 U. Mem.
L.Rev.
(6).
(3),
§
Ann.
1—113(g)(1),
Tenn.Code
36—
(1997).
888
that
does not
argues
Jamie F.
the record
legislation,
Prior to the
Tennessee
1995
of
convincing
evidence
contain clear
in a variety
defined abandonment
of
law
any of
grounds.
of
these
We
existence
collected the
ways.29
legislation
1995
disagree.
of
existing statutory
four
definitions
aban-
together
in
placed
them
donment
A.
36-l-102(l)(A)
(Supp.
§
Ann.
Tenn.Code
Abandonment
2004).
Assembly expressly
The General
Assem-
of abandonment
disapproved
In
definition
Tennessee General
by
bly
comprehensive
developed
adoption
of
the courts for use in
a
revision
enacted
part
the General As-
adoption
proceedings.30
As
Tennessee’s
statutes.27
initiative,
a
of
Assembly
sembly
of
added
fifth definition
abandon-
this
General
§
significantly
governing
altered
the ment
36-1-
the law
special
conclu
in which the consent of
ognized the difference between the
circumstances
biological
legal parent
adoption
required
not
parent
not com
a
sion that a
had
stating
by
adoption
plied substantially
obligations in a
terminates
with her
by
parent.”)
upon
rights of that
permanency plan and the
relied
facts
support
conclusion. In
the trial court
Valentine,
548-49;
at
see also
development
re
79 S.W.3d
of the
29. For discussion
Garrett,
v.
each use of the
interpreted
word must be
statutory
with reference to the
context
Abandonment Under TenmCode
*24
appears.
which it
United
v.
States
San
36-l-102(l)(A)(i)
§Ann.
chez-Corcino,
(11th
549,
85 F.3d
552-53
Cir.1996);
Muir,
re Adoption
In
No.
TenmCode
36-1-
of
M2002-02963-COA-R3-CV,
102(l)(A)(i)
2003 WL
defines abandonment as fol
22794524,
Nov.25,
at *5 (Tenn.Ct.App.
lows:
2003) (No
R.App.
Tenn.
P. 11 application
(4)
For a period of four
consecutive
George
filed);
A
W.
Paton,
Textboox
months immediately preceding
filing
JurispRUdenoe
(4th ed.1972)
n. 2
(sug
313
of proceeding
a
pleading
or
to terminate
gesting that use of the word should be
parental rights
parent(s)
of the
or
avoided
ambiguities).
because
its
guardian(s) of the child who is the sub-
In the statutes governing the
ject
petition
for termination of
termination
rights,
“willful
parental rights or adoption,
par-
that the
ness”
require
does not
the same standard
ents) or guardian(s) either have willful-
of culpability
by
as is required
penal
ly failed to visit or
willfully
have
failed to
A.E.T.,
Adoption
code. G.T. v.
725
support
willfully
or have
failed to make
404,
So.2d
409 (Fla.Dist.Ct.App.1999).
payments
reasonable
support
toward the
require
Nor does it
malevolence or ill will.
of the child.
Minor,
292,
In re Adoption
a
343 Mass.
Jamie F. concedes that she did not visit or
264,
(1961).
178 N.E.2d
267
Willful con
support Audrey S. or
during
Victoria L.
duct consists of
or
acts
failures to act that
period
four-month
leading up
Janu-
to.
voluntary
are intentional or
rather
than
12,
ary
2004, the date
guardians
ad
Mazzeo,
accidental or inadvertent.
In re
joint
litem filed the
petition.32
(2d
295,
Cir.1997);
131 F.3d
299
United
However,
argues
she
(11th
1565,
Phillips,
States v.
19 F.3d
1576
in finding
erred
that she abandoned Cir.1994);
Earhart,
Adoption
In re
117
her children under
statutory
the first
defi-
73,
468,
(1961);
Ohio App.
190 N.E.2d
470
nition of abandonment because the record Meyer
Homes,
Skyline
v.
Mobile
99 Idaho
does not show that her
(1979).
failure to visit or 754,
89,
589 P.2d
97
. Conduct is
support
during
her children
period
“willful” if it is the product of free will
was willful.
agree.
Thus,
We
rathеr than coercion.
person
acts
7, 2001,
388,
4,
Act of June
immediately
ch.
2001
preceding
filing
four months
907,
Tenn. Pub. Acts
910-11.
may
of a
then
the court
be used
before
grounds
parental rights.”
as
to terminate
Supreme
32. The
recently
Tennessee
Court
D.L.B.,
(emphasis
re
864 271, 615, agent, Ga.App. 617 “willfully” if he or is a free 232 501 S.E.2d she Leitch, (1998); 632, doing, he or and intends 636 n. knows what she is In re 732 So.2d or doing. what he she is (La.Ct.App.1999). to do 5 support Failure to visit con particular The willfulness of is aware of person child is “willful”when a intent. In depends upon duct the actor’s duty to has the support, his or her visit or capable proof, and tent is seldom of direct so, do attempt to do no capacity makes into a ability peer lack the triers-of-fact so, justifiable and has no excuse not moti mind to intentions or person’s assess re M.J.B., doing so.33 In 140 S.W.3d at S.M.F., In re No. Adoption vations. Reeves, 654; also v. 72 Ark. see Shorter M2004-00876-COA-R9-PT, 2004 WL 71, (2000); In re 32 S.W.3d 760 App. 2004) Dec.6, (Tenn.Ct.App. at *8 B.S.R., (Mo.Ct.App. 965 449 S.W.2d filed). (No R.App. application Tenn. P. 11 Teaschenko, 1998); 393 In re Estate of in must infer Accordingly, triers-of-fact (1990); In Pa.Super. 574 A.2d evidence, in from the tent circumstantial C.C.T., P.2d Adoption re conduct. See cluding person’s actions or support or to (Wyo.1982). Failure to visit Wolfe, City v. Johnson conduct person’s is not excused another Jones, (1899); Absar v. 52 S.W. actually prevents unless the conduct *25 86, (Tenn.Ct.App.1992); 89-90 833 S.W.2d perform from person obligation with 144, Washington, 146 v. 658 S.W.2d State duty, Adoption his or her In re ing also In re (Tenn.Crim.App.1983); see 163, 946, Lybrand, 329 Ark. 946 S.W.2d K.L.C., 768, (Mo.Ct.App. 9 S.W.3d 773 (1997), significant or to a 950 amounts 2000). par of or with the restraint interference during F. Jamie was incarcerated develop a rela support ent’s efforts or the fil- period preceding entire four-month Serve, child, 77 tionship with the In re It is joint petition. termination ing of the 29, 1185, 1189 Misc.2d 665 N.E.2d Ohio fathers re- undisputed that the children’s 589, (1996); Ash, .App. 33 Panter v. 177 Or brought them to the fused to allow to be (2001).34 1031 P.3d during F. for visitation with Jamie prison duty separate of visitation distinct It from the rec- this time.35 is also clear Thus, support. parental duty from the paying F. that Jamie no means of ord had by impede or attempts others to frustrate her crimes justifi support for her children once parent’s provide a visitation do not resulting deprived had support incarceration parent’s for the failure to cation Futch, ability weekly pay- a her of the receive Bаteman v. financially. the child 15) parent's efforts to vigorously resisting a parent support a child be- 33. A who fails to S.A.B., unable to do so financially cause he or she is In 735 So.2d visit the child. re willfully failing support the child. Adoption is not (Fla.Dist.Ct.App.1999); re 524 188; Messier, S.W.2d G.P.B., O'Daniel v. 905 Jr., 736 A.2d N.J. Children 161 Bechtold, Tenn.App. 448 Pierce v. 60 Ash, (1999); P.3d at v. Panter (1969). S.W.2d 1031; Taxonomy Rights, Wm. Children’s n Mary Bill Rts. J. at & significant re- that to a 34. Conduct amounts parent’s ef- of or interference with straint fact, we do not mean pointing out this 35.In relationship support develop or with forts any decision way the fathers’ to criticize in (1) telling a man he is not a child includes: Audrey L. to allow S. and Victoria not to father; (2) biological blocking ac- the child’s prison, for visitation taken to even child; (3) keeping the to the child’s cess mother. unknown; their (4) vigorously resist- whereabouts child; ing parent’s support the or efforts to Thus, check. support payments record does not ... make reasonable toward the (4) juvenile implicit finding court’s that support of the child for four consecutive Jamie F.’s failure to visit or support immediately Au- months preceding par- such drey during S. Victoria L. the four ... ent’s incarceration.” Ann. Tenn.Code 36-l-102(l)(A)(iv). preceding joint months filing § This tracks the test petition was willful. Accord- language statutory of the first definition of ingly, court erred in finding abandonment but shifts the focus from the F. Jamie abandoned period immediately preceding four-month § Victoria L. under filing Tenn.Code Ann. 36-1- the termination to the 102(l)(A)(i). period immediately four-month preceding parent’s concept incarceration. The
Abandonment Under Tenn.Code “willfulness” is the provi- same under both 36-l-102(l)(A)(iv) § Ann. 36-l-102(l)(B)- sions. (E). The second test asks whether court also found parent engaged “has prior conduct abandoned S. and incarceration which exhibits a wanton dis- under Tenn.Code Ann. 36-1- 102(l)(A)(iv)’s regard for the welfare of the child.” definition of abandonment: 36-l-102(l)(A)(iv). Code Ann. This test parent
A or guardian is incarcerated at analog has no statutory the first defini- the time of the institution of an action or abandonment, tion of and it express- is not proceeding to declare a child to be an ly any particular limited to pe- four-month child, abandoned parent or the guard riod. ian has been during incarcerated all or (4) part of the four immediately months Assembly’s The General decision preceding the institution of such action *26 provide two additionаl tests for aban or proceeding, and willfully either has donment for recently incarcerated or in failed to visit or willfully has failed to reflects, parents carcerated in part, the support willfully or has failed to make difficulties inherent in proving par that a payments reasonable toward the support willfully ent has failed to support visit or a (4) of the child for four consecutive child for four consecutive months when the immediately
months preceding par such parent was incarcerated during part all or ent’s or guardian’s incarceration, or the necessarily that time. Incarceration re parent guardian or has engaged con movement, prisoner’s stricts a freedom of prior duct to incarceration which exhib many prisoners have no resources its a disregard wanton for the welfare of with which to paying sup continue child the child. port once their crimes resulting im This definition contains two distinct prisonment tests have forced them to forfeit for abandonment. These jobs. Thus, additional tests regular their in parent’s the for apply only abandonment if parent is provides carceration a ready-made excuse incarcerated or near the time of the for his or her failure to visit or support the filing of the petition.36 during child period the four-month made first test asks whether parent the “has by relevant the first statutory definition of willfully visit[,] failed to ... support!,] However, public abandonment. the strong legislation, 36. Prior to the 1995 child-placing agency. or a definition licensed of abandonment was further restricted to 1—102(b)(l)(B)(i) (Supp. Code Ann. 37— cases in custody which the child was in the 1994). Department the Tennessee of Human Services parent guilty can found providing interest in for termi- incarcerated procedures finds, if parental rights parents only by of unfit the court nating the abandonment par- evidence, dissipate simply convincing not because that does clear irresponsible conduct has reached conduct dis- pre-incarceration ent’s parent’s criminal and incarcera- level of behavior for the welfare played disregard a wanton § 36-1- Thus, tion. Ann. TenmCode incarcera- parent’s of the child. 102(l)(A)(iv)’s first test for abandonment only as a mechanism triggering tion serves his or parent relying from prevents the court a closer look that allows to take resulting her own criminal behavior and situation wheth- at the child’s to determine as a to the termi- imprisonment defense that resulted parental er the behavior rights his or parental nation of her pattern part incarceration is of a broader the court the record of allowing to examine unfit or parent of conduct that renders the support during the most re- visitation harm to the a risk of substantial poses the ex- period cent four-month for which child. welfare of the of incarceration cuse is unavailable. juve F. challenges Jamie Ann. 36-1- Tenn.Code conclusion that she met nile court’s 102(l)(A)(iv) the common also reflects 36-1- requirements is that incarceration parental sense notion 102(l)(A)(iv)’s first test for abandonment. may indicator be other strong that there that specifically court found in the home that threaten problems Oc during period the four-month between severe of the child. Incarceration welfare Jamie February 2001 and tober ability per compromises a ly parent’s only Audrey S. and F. visited A parental par or her duties. form his support no paid once or twice that decision to in conduct engage ent’s willfulness, either child. On issue it incarceration is carries with the risk of half rejected Jamie may not be parent indicative itself that the Terry prevented had claim S. hearted Taxonomy fit to care the child. seeing Audrey from and found Maky Bill Rts. Rights, 11 Children’s & We pay employed and able to However, incarceration parental J. at 958. during months for her children support predictor not an infallible leading up to her incarceration. *27 Ann. Accordingly, Tenn.Code unfitness.37 juvenile the disputes 36-l-102(l)(A)(iv)’s test for § second of her findings on the basis court’s factual incarceration does not make abandonment trial that at the testimony termination pa of own ground alone a for the termination “all Audrey recently S. and Victoria An or she visited rights. incarcerated rental half-sibling, any child re- sibling or other statutory the mere or that made 37. A scheme home); ground parent's the termi- Ann. siding for the Tenn.Code fact of incarceration regard to parental rights, of without 36-1-113(g)(6) (making nation § incarceration confinement, length nature of the the of the rights parental ground of termination effect, offenses, underlying offense and the or parent only confined under where is any, parent's conduct and of the criminal if years and the child of ten or more sentence child, raise seri- on would incarceration eight years age the sen- when was under questions. Tenn.Code constitutional ous Cf. entered); §Ann. 36-1- tence 36-1-113(g)(5) (making incarceration Ann. (making 113(g)(7) for intentional conviction rights parental ground for parent or wrongful death of other child’s parent only been sentenced where has ground legal guardian a for termination years child prison for severe than two more rights). child, child's against abuse committed 36-l-102(l)(A)(iv)’s during the time” the four months immedi- first test for aban- ately preceding her incarceration and that donment. paid support she “some” for each child. juve Jamie F. also challenges the argument This juvenile meritless. The nile court’s conclusion that she satisfied obviously court disbelieved Jamie F.’s requirements TenmCode 36- frequent pre-incarceration claims of visita- l-102(l)(A)(iv)’s second test for abandon tion and even occasional support payments juvenile specifically ment. The and contrary credited instead the testimo- probation found that Jamie F. committed S., ny Terry S., Wilma and Christina B. violations in 1996 and that she was great We accord weight to a trial court’s incarcerated regarding decisions credibility guilty that she to an pled especially aggra witnesses who have testified before it. kidnaping aggravated vated and an rob Garrett, 838; Jones v. 92 S.W.3d at In re bery day that occurred the before her Walton, Estate 950 S.W.2d juvenile incarceration.38 The court also (Tenn.1997); Constr., Polk, B & G. Inc. v. found Jamie F. had an extensive his 37 S.W.3d 465 (Tenn.Ct.App.2000). tory drug abuse and that she had failed addition, having reviewed the trial tran- to maintain a stable residence any detail, script great we unsurpris- find it length of time following the birth of her ing court found Jamie children. inconsistent, F.’s vacillating, and often out- Jamie F. admitted all of these facts at
right false testimony to be unconvincing. However, the termination trial. she ar- gues that provide these facts do not clear Jamie F. visited S. and Victoria convincing engaged evidence that she L. no more than once or twice during the in pre-incarceration conduct which exhibit- four immediately months preceding her in- ed a disregard wanton for the welfarе of carceration. This amounts to nothing more Audrey S. and Victoria L. argu- Jamie F.’s than token vein, visitation. In a similar (1) presents ment two issues: whether the if even we were to credit Jamie F.’s testi- juvenile court in finding erred that Jamie mony paid that she support for her chil- violations, F.’s probation repeated incar- dren during period, testimony own ceration, behavior, abuse, drug criminal establishes that she only made a “few” and failure to maintain a stable residence payments, and that the total amount of disregard exhibited a wanton for the wel- support paid she “wouldn’t have been (2) L.; fare of S. and Victoria much.” This nothing amounts to more whether the in relying court erred than support. Thus, token the record on prior conduct to the period four-month appeal contains clear convincing evi- *28 immediately preceding Jamie F.’s Febru- willfully dence that Jamie F. failed to visit 8, ary 2002 in making incarceration this or support her during children the four- finding. period month immediately preceding her 8, incarceration on February 2002. Ac- The first issue by is resolved ref cordingly, affirm we the court’s erence to our prior case law. have We finding that Jamie F. abandoned repeatedly violations, probation held that S. and Victoria L. incarceration, behavior, under TenmCode Ann. repeated criminal 38. The record shows that Jamie F. was also 1999. incarcerated, reasons, August for unknown in
868 2005) abuse, 954866, (Tenn.Ct.App. Apr.25, failure to at *6 provide
substance and the (No filed); child adequate support supervision for a R.App. application P. 11 Tenn. combination, can, or in T.L.C., alone constitute Servs. v. Dep’t State Children’s of disregard conduct that a wanton exhibits E2002-00699-COA-R3-CV, No. 2002 WL See, e.g., of a child. the welfare State 31324623, Oct.14, (Tenn.Ct.App. at *2 J.M.F., v. No. Dep’t Children’s Servs. 2002) (No application of Tenn. P. 11 R.App. E2003-03081-COA-R3-PT, 2005 WL filed); C.W.W., 474. In In re 37 at S.W.3d Jan.ll, 2005), 94465, (Tenn.Ct.App. at *7-8 not practice, we have followed rule (Tenn. 2005); 21, perm. app. denied Mar. the any consistency. In one of cases LaC., In re C. No. M2003-02164-COA- rule, that the it is clear from the stated (Tenn.Ct. R3-PT, 533937, 2004 WL at *7 court not opinion that we did confine 2004) (No Mar.17, 11 App. R.App. Tenn. P. our to the four months immediate- inquiry filed); C.T.S., application In re 156 S.W.3d ly parent’s preceding incarceration. C.W.W., 18, In re (Tenn.Ct.App.2004); 25 H.A.L., 954866, *7. In re 2005 WL at In case, at 474-75. In this all of S.W.3d rule, stating it is unclear another case Thus, prеsent. elements these are we opinion from the court’s whether actu- finding court that did not err ally Dep’t it. State Children’s followed of pre-incarceration conduct dis T.L.C., 31324623, at *1- Servs. v. WL disregard for the played wanton welfare 3. S. and it only two in which There are cases easily issue is not second so rule clear that have an- we followed prior to our resolved reference case contrast, By nounced in these cases.39 stated, cases, law. In three this court has it is there are ten cases in which clear analysis, trial courts without can con opinion from the we only parent’s behavior the four sider relied that occurred conduct immediately preceding par months immediately prior period to the four-month determining incarceration in ent’s whether parent’s incarceration de- preceding the pre-incarceration parent engaged has ciding parent’s pre-incarcera- whether disregard conduct which exhibits a wanton H.A.L., disregard tion exhibited a wanton child. In re conduct for the welfare M2005-00045-COA-R3-PT, In a of the child.40 few No. 2005 WL the welfare W1999-01662-COA-R3-CV, F.E.B., Dep’t No. WL 39. Servs. v. State Children’s E2001-00942-COA-R3-JV, Mar.1, (No 204204, 2001) No. 2003 WL (Tenn.Ct.App. at *9 296185, 12, 2003) (Tenn.Ct.App. filed); at *3 Feb. application R.App. Tenn. P. 11 G.M.C. (No filed); R.App. application In Tenn. P. 11 E2000-00134-COA-R3-CV, A.V.I., v. No. C.W.W., 37 at 474-75. re S.W.3d (Tenn.Ct.App. 2000 WL at *5-6 (Tenn. 2000), Aug.23, perm. app. denied Feb. H.A.L., *7; WL at State In re 20, 2001); Dep’t Children’s Servs. v. State J.C.G., Dep’t Children’s v. No. E2004- Servs. 03A01-9903-JV-0091, Wiley, 1999 WL No. 02103-COA-R3-PT, at *3 2005 WL Nov.24, 1999), (Tenn.Ct.App. *7 at 2005), Apr.4, (Tenn.Ct.App. perm. app. denied 24, 2000); (Tenn. perm. Apr. app. denied State J.K.F., 2005); (Tenn. v. No. June H.M.R. Osborne, Dep’t Children’s Servs. v. No. E2004-00497-COA-R3-PT, 2004 WL 01A01-9810-JV-00564, WL 2004) (Tenn.Ct.App. Sept.l, at *4-5 (No 1999) Aug.2, (Tenn.Ct.App. Tenn. *6 filed); (No R.App. application P. 11 *29 filed); application Shipley, re R.App. 11 In 533937, P. LaC., *7; at 2004 State re C. WL 596281, 03A01-9611-JV-00369, J.S., 1997 WL No. Dep’t v. No. M2000- Children’s Servs. (No 1997) 1285894, Sept.29, 03212-COA-R3-JV, (Tenn.Ct.App. Tenn. at *5 at *3- 2001 WL Oct.25, 2001) (No filed). (Tenn.Ct.App. application R.App. Tenn. P. 11 4 Davis, filed); application R.App. 11 In re P.
869
cases,
rule,
Co.,
(Tenn.
98,
other
we did not state
loughby
483
100
S.W.2d
it
is unclear
from
opinion 1972);
the court’s
Merrimack Mut. Fire Ins.
v.Co.
Batts,
whether
followed it or not.41 In light
142,
we
59
151 (Tenn.Ct.App.
S.W.3d
discrepancy
our
2001),
between
occasional
that
by
the words chosen
our
practice,
statements and
actual
we
Assembly convey meaning
General
rely
prior
cannot
on our
case law to re-
Assembly
General
intended them to con
solve this issue.
Ctr.,
vey, Limbaugh v.
Med.
59
Coffee
83;
Telecomms.,
at
S.W.3d
BellSоuth
Inc.
statutory
The issue is one of
(Tenn.Ct.
Greer,
663,
v.
972
673
S.W.2d
interpretation.
responsibility
for de
Thus,
App.1997).
we must construe stat
termining what a statute means rests with
them,
Jackson,
utes as we find
v.
Jackson
Roseman,
the courts. Roseman v.
890
332,
186 Tenn.
210 S.W.2d
334
27,
(Tenn.1994); Realty
S.W.2d
29
Shop,
(1948);
E. Corp. v.
Hold
Pacific
Gulf Life
Inc.,
Inc. v. R.R.
Holding,
Westminster
7
Co.,
946,
ing
902
(Tenn.Ct.App.
S.W.2d
954
581,
S.W.3d
601 (Tenn.Ct.App.1999). We
1995), and our search for a
pur
statute’s
must
give
ascertain and then
fullest
pose
begin
must
with the words of the
possible
Assembly’s
effect
the General
itself, Blankenship
statute
v. Estate of
purpose in enacting the statute as re
Bain,
647,
(Tenn.1999);
5 S.W.3d
651
State
flected in the
language.
statute’s
Stewart
rel.
Transp.
ex
Comm’r
v. Medicine
State,
(Tenn.
785,
v.
33 S.W.3d
790-91
Bird Black
Eagle,
Bear White
63 S.W.3d
2000);
Jordon,
362,
Lavin v.
16 S.W.3d
734,
(Tenn.Ct.App.2001).
754
(Tenn.2000).
365
so,
In doing
we must
avoid constructions
unduly expand
give
We must
a statute’s words
restrict
the statute’s application.
v.Watt
their natural
ordinary meaning
unless
Co.,
Lumbermens Mut. Cas.
Ins.
62
the context in which
are used re
123,
(Tenn.2001);
S.W.3d
128
Patterson v. quires otherwise. Frazier v. East Tenn.
Dev.,
Tenn. Dep’t Labor &
60
Workforce
Inc.,
928;
Baptist Hosp.,
Our construction of a statute Flemming, is v. 19 S.W.3d likely 2000); Rasar, more conform with the General Lyons v. 872 S.W.2d Assembly’s purpose (Tenn.1994); if approach N.C., we Wachovia Bank of presuming Johnson, (Tenn. statute the General N.A. As v. S.W.3d sembly purposely chose its words Ct.App.2000). and de meaning When the of statu liberately, clear, Tidwell v. tory language Servomationr-Wil- interpret we must it J.M.F., C.T.S., 25; Duncan, Dep’t 41. State Taylor Children’s Servs. v. re 156 S.W.3d at v. *8; D.N.G., 2005 WL M1999-01713-COA-R3-CV, In re No. No. 2000 WL M2003-02810-COA-R3-PT, 2004 WL 28, 2000) (Tenn.Ct.App. July at *6 Oct.13, 2004) (Tenn.Ct.App. at *2 (No filed). R.App. application Tenn. P. 11 (No filed); R.App. application P. 11 *30 870 Indus., Inc., written, Kradel v. 60 The text of Tenn.Code Ann. 36-1- Piper
as 102(l)(A)(iv) 744, (Tenn.2001); cumbersome, 749 ATS South S.W.3d is somewhat but 626, east, v. Corp., ambiguous. begins by Inc. Carrier 18 S.W.3d it is not It describ- (Tenn.2000), using the rather than 629-30 ing people the class of to the statute whom give of to the statute tools construction applies: meaning, Limbaugh
another v. Med. Coffee guardian A or is incarcer- parent [who] Ctr., 83; v. Checker 59 S.W.3d Gleaves of an ated at the time of the institution 799, Corp., 803 Transit 15 S.W.3d Cab action or a child proceeding declare (Tenn.2000). child, parent an or or [a] be abandoned however,
Statutes,
not al
guardian
are
has been incarcerated
[who]
(4)
from
we en
months
ways
ambiguity.
during
part
free
When
all or
of the four
ambiguous statutory language— immediately
counter
institution of
preceding the
reasonably
that can
have more
language
or proceeding.
such action
meaning42
to the
than one
must look
—we
Next,
the statute
two distinct
describes
statute,
statutory
scheme
entire
entire
categories
behavior
appears,
in which the
and else
statute
engaged in
amount to abandonment when
Assembly’s
where to ascertain the General
designat-
by person
who falls within the
Walls, 62
purpose.
intent and
v.
State
(1)
or
class:
visit
“willfu[l] failure]
ed
119,
(Tenn.2001);
121
State v.
S.W.3d
...
pay-
...
or
make reasonable
support
(Tenn.2001).
51
McKnight,
S.W.3d
566
the child for
support
ments toward the
frequently
of the sources that
look
One
we
(4)
immediately
four
consecutive months
legislative
guidance
to for
the statute’s
in-
parent’s
guardian’s
such
or
preceding
Bd.
history.
Memphis
Bowden v.
(2)
carceration;”
in-
prior
“conduct
Educ.,
(Tenn.2000);
29 S.W.3d
465
disre-
which exhibits a wanton
carceration
Servs.,
Hathaway
Family
v.
Fin.
First
for the welfare of the child.”
gard
(Tenn.1999);
Inc.,
1 S.W.3d
640
36-l-102(l)(A)(iv).
§Ann.
Code
Med.,
v. BlueCross
Reeves-Sain
Inc.
fea-
categories
two salient
These
have
Tenn.,
503, 507
BlueShield
40 S.W.3d
First,
has its own
category
tures.
each
(Tenn.Ct.App.2000).
cautious
must be
We
element: “willfu[l] fail[ure]
behavioral
consulting
history. Bell
legislative
about
support
or ...
or ... make reason-
visit
Greer,
Telecomms.,
972
Inc. v.
South
support payments toward the
able
meaning
at 673. A
must
statute’s
S.W.2d
...
exhibits
child” versus “conduct
which
Thus,
in its
comments
grounded
text.
disregard for the welfare
wanton
Assembly’s de
during the
made
General
§ 36-1-
Ann.
child.”
TenmCode
a con
provide
cannot
a basis for
bates
102(l)(A)(iv). Second,
con-
category
each
that is
in the statute’s
struction
not rooted
four
temporal
“for
tains its own
element:
Celauro, 765
text. D. Canale & Co. v.
(4)
immediately pre-
months
consecutive
(Tenn.1989);
v.
Toumes
S.W.2d
incar-
ceding
parent’s
guardian’s
such
Co.,
453 n.
Oster
Sunbeam
S.W.3d
“prior
versus
to incarceration.”
ceration”
a statute’s
(Tenn.Ct.App.2001).
When
36-l-102(l)(A)(iv).
during a
made
text and
comments
temporal aspects
the behavioral and
text con While
legislative
diverge,
debate
Telecomms.,
categories overlap to some de-
v.
the two
Inc.
trols. BellSouth
as two
Greer,
clearly
are
structured
gree,
had intended the phrase “for four con- immediately secutive months preceding B. parent’s guardian’s such or incarceration” apply to categories both of conduct. Remedy Failure to Persistent 1—102(1)(A)(iv). Ann. 36— Conditions Thus, a close examination statutory of the court also relied on Tenn. limiting text reveals that the phrase “for 36-1-113(g)(3) ground Code as a (4) four consecutive months immediately for terminating parental rights. Jamie F.’s preceding such parent’s guardian’s or in- termination, This ground for is com- which carceration” was to apply only intended monly referred “persistence to as of condi- category the first of conduct. Tenn.Code tions,” applies where: 1—102(1)(A)(iv). §Ann. 36— The child has been removed from the We see no reason to depart from parent home of the or guardian by order the plain meaning of the text. The Ten (6) of a period court for a of six months nessee Supreme yet Court has not provid and: ed an authoritative interpretation of this
provision, precedents and our on the issue (i) The conditions Which led to the Moreover, are inconsistent. we see no child’s removal or other conditions difficulty constitutional applying in which in all probability reasonable statute as it is written. If parental con subjected would cause the child to be duct which exhibits a disregard wanton to further neglect abuse or the welfare of a child can constitutionally which, therefore, prevent the child’s ground form a for the pa termination of safe return to the care par- rights, rental it appear would no ents) guardian(s), or persist; still moment whether that conduct occurred (ii) There is little likelihood that these during the four immediately pre months will conditions be remedied at an ceding parent’s incarceration or at early date so the child can be point Thus, sоme earlier' juve time. safely parent(s) returned or nile court did not in relying err on Jamie future; guardian(s) the near F.’s behavior prior to the four months (iii) immediately preceding her incarceration in parent continuation of the finding that she had engaged pre-incar- guardian relationship and child ceration conduct that exhibited a greatly wanton diminishes child’s disregard for the welfare of her children.43 early chances of integration into a Accordingly, safe, we affirm the court’s permanent stable and home. inquiry Even if we were to limit During period our to the the four-month Oc- between immediately preceding four months 8, 2002, February tober 2001 and Jamie F. February F.'s incarceration on we kidnaping robbery, committed a vicious difficulty concluding would have no that the using illegal drugs, willfully she was she failed convincing record contains clear and evi- engage in more than token visitation with pre-incarcera- dence that Jamie F. engaged children, willfully pro- and she failed to tion conduct that exhibited a wanton disre- any monetary support. vide her children with gard for the welfare of S. and Victoria *32 untenable, 36-l-113(g)(3)(A).44 § a she in-
Tenn.Code Ann. result would be and carving vites it out by us to avoid an F. does not that dispute Jamie § exception to Ann. 36-1- TenmCode L. S. were removed Victoria 113(g)(3) for court that arise orders the period from her home a of than more custody disputes. context of child months on basis of court orders. six the Terry F. was married to or Jamie never S. provides The statutory text no basis for L., had legal and she therefore cus Justin urged categorical exception by the broad . tody they of both children when were does, however, a nar- suggest Jamie F. It (2001); § born. TenmCode Ann. 36-2-303 scope rower limitation on the of this 549, 556, v. Tenn. Streight, Baskette 106 62 rights. ground parental for termination of 142, (1901); Taxonomy 144 S.W. Chil of original The refers both to the statute Mary Rights, dren’s 11 Bill Rts. J. & Wm. led to child’s remov- “conditions which the at 859 & n. 28. The court effec al” in all and to “other conditions” which from tively removed Jamie F.’s a probability reasonable cause child would 21, home it the 1996 when entered March subjected and ne- abuse “further 28, restraining the March order and 1996 § glect.” TenmCode Ann. 36-1- awarding custody order of Au temporary added). 113(g)(3)(A)(i)(emphasis The ref- drey The S. Wilma S. court sug- neglect to “further” erence abuse effectively from Jamie removed Victoria gests, obliquely, that the statute was albeit 30, the F.’s home when it entered March only apply prior intended to where order, juve an order the restraining on of removal based a order nile court maintained until October judicial finding neglect. of abuse or custody it changed when Victoria § 36-l-113(g)(3)(A)(i). Code Ann. never regained L. to Justin L. F. Jamie custody following entry her children of the stat- development historical initial of these orders. ute that intended to suggests also it was prior be limited to cases which the order argues prior that these orders judicial finding of removal was based on a fall do not within the ambit TenmCode neglect, or abuse. The dependency, § 1—113(g)(3) they Ann. because arose 36— Assembly ground created the General custody disputes. in the context of child pres- parental rights termination of that removing if orders She warns that ently Ann. 36-1- codified TenmCode Audrey S. and L. from custo- time, 113(g)(3) in 1977.45 Prior to predicate dy qualify as orders of removal statutorily author- Tennessee courts were 1—113(g)(3), under Ann. TenmCode 36— ized, to re- required, in a and in some cases every custody then order results chil- “neglected” child move change primary “dependent” residence of a custody parents.46 dren of their can serve as basis for later termi- from “neglected” parent’s “dependent” pa- nation of the non-residential words art, were were rights. Jamie F. contends that such used as terms rental (B) May is no 45. Act of ch. 44.There subsection the statute. n designation The anomalous subsection Tenn. Pub. Acts 1365-66. (B) (A) corresponding without a subsection legislation originated in the draft submitted (1955), §§ 37-104 37-101 by study Assembly General in 1995 (1955), 37-229(c) (1955), (Supp. 37-219 by legislature appointed commission 37-230(a) 1976). 1976), (Supp. adoption changes to recommend Tennessee's laws. statutorily defined to include cases of child neglect” “providing] proce- abuse and abuse.47 protection, dures and standards for such including termination of parental rights.”
However, the law did not authorize ter- Act May pmbl., ch. mination of rights solely based legislation Tenn. Pub. Acts at 1362. The judicial finding of dependency, neglect, recognized permanence the critical role of Following judicial abuse. finding of *33 stability allowing a child to over- abuse, dependency, neglect, or a court devastating come the often effects de- could declare a child to an “abandoned pendency, neglect, by creating child” and and abuse parent’s parental terminate the rights only ground if it found new for parent parental the termination of subsequently rights. “made no effort provide ground This new for termination child, suitable home” for the displayed parental “a of rights assigned lasting signifi- welfare,” lack of concern as to the child’s judicial cance to a finding dependency, and “failed to degree personal achieve a neglect, or abuse and broadened the law’s that, rehabilitation as would indicate at almost exclusive focus on the behavior and date, some future or pro- [he would she] parent wishes of the to include consider- vide a suitable home for the child.” Tenn. ation prolonged of the effects of state cus- 36-102(5) § Code Ann. (Supp.1976).48 tody or foster care on the welfare of the child.
Thus, children removed par- from their custody ents’ they because depen- were enacted, originally As ground this new dent, neglected, or abused were often for parental rights termination of provided caught legal whipsaw. They could not as follows: be returned to their parents, because their The child has parents been removed from had not improved point to the custody of parent by for at being provide able to them with a suitable (1) home, year least one they but and the court could not be finds adopted into stable permanent either, that: homes be- long cause as parents as their made some (a) the conditions which led to the re- effort, minimal, however improve, then- still persist; moval
parental rights could not be terminated. (b) there is little likelihood that these Cohen, Neil P. A Survey Critical Devel- conditions will be remedied at an opments in Tennessee Family Law in early date so that the child can be 1976-77, 427, 45 Tenn. L.Rev. 467-68 parent returned to the in the near (1978). These children languished often future; and years in state custody or foster care they until simply “aged out” of system. (c) the legal continuation of the parent express purpose legisla- of the 1977 relationship greatly and child dimin- tion “protec[t] was to ... children from ishes the early child’s chances of in- (1955), 36-102(5) § 37-202(7) §§ 37-202 (Supp.1976), 37- (Supp. 202(6)(ii), (vii) (Supp.1976). 1976), comply failure to with the terms of a plan, foster care Tenn.Code Ann. 37-1502 course, parent’s parental 48. Of rights could (Supp.1976), engaging or in conduct grоunds also be terminated on the available purpose forego evinced a paren- settled all in cases prior judi- where there had been no relinquish tal duties and all claims to abuse, finding cial dependency, neglect, or child, 1, parte Wolfenden, Tenn.App. Ex i.e., willful support failure to visit or the child (1959). 349 S.W.2d months, for four consecutive Tenn.Code Ann. tegration perma- finding neglect, into a of dependency, stable or abuse. nent home. Accordingly, must determine we now remov- whether March order May Act of ch. ing Audrey custody F.’s from Jamie Pub. Acts 1365-66. Unlike removing the March 2001 order Victo- existing ground then con- 36-102(5) custody ria L. from tained in were based Tenn.Code Ann. judicial (Supp.1976), ground findings dependency, neglect, this new for termi- par- nation focused on the results of the or abuse. improvement ent’s efforts at rather than 28,1996 temporary The March mere fact that he she had made custody restraining preceding order and addition,
them.
ground
the new
asked
dependency
order were
in a
entered
whether
child could be
to the
returned
neglect proceeding, but
were not
future,”
May
“in
parent
the near
Act of
*34
judicial finding
on a
S.
based
482, §
ch.
1977 Tenn. Pub. Acts
or
The
might
dependent, neglected,
abused.
rather
than whether the child
able to
returned
future
governing procedure
be
be
“at some
statutes
rules
36-102(5)
date,”
§
(Supp.
Ann.
juvenile
Tenn.Code
for
provide
types
the
courts
three
1976).49
hearings
al
of
in cases where a child is
to be
or
leged
dependent,
neglected,
reject Jamie
invitation to
We
(1)
(2)
preliminary hearings;
abused:
ad
categorical
carve out a
to Tenn.
exception
(3) dispositional
judicatory hearings;
§ Ann.
36-1-113(g)(3)
prior
Code
court
37-l-117(e)
§§
Ann.
hearings. Tenn.Code
arising
orders
in the
child custo
context of
(c)
1—128(f)(2001),
(2001),
37-l-129(a),
However,
hold,
dy disputes.
we
based on
37—
37-l-171(a)
(d)
(2001);
(Supp.2004),
statutory
the
text and its
devel
historical
5(d)(3), 6(c), 16, 17(a), 18(a),
P.
R. Juv.
§
opment,
that Tenn.Code Ann.
36-1-
32(a).
27(b), 28(a)-(c), (f),
function of
113(g)(3)
ground
as a
for termi
applies
hearing is
adjudicatory
the
to determine
rights
nation of
the
parental
only where
allegations
dependency,
the
of
ne
prior
the child from whether
removing
court order
judicial
a
P.
parent’s
glect,
the
home was based on
or abuse are true. Tenn. R. Juv.
36-102(5)’s
ground
§
49. Tenn.Code Ann.
definition of
terminated
on the
of abandon-
based
by
§
an
child” for cases in which
as
Tenn.Codе Ann.
36-1-
"abandoned
ment
defined
102(l)(A)(ii).
already
judicial
overlap appears
previous
there
a
to be inad-
had
been
neglect,
finding
dependency,
Taxonomy
Rights, 11
of
or abuse re-
vertent.
Children's
of
virtually unchanged
("Legal
the 1995
Bill Rts. J. at 952
rules
Mary
mained
until
Wm. &
parent-child
comprehensive
adoption
governing
of
rela-
revision of
law of
termination
the
tionships today
ridiculously complicated.
parental rights. The 1995
are
and termination of
legislation
phrase
Byzantine
is not
replaced the
“no effort”
Their
nature
so much
phrase
consequence
attempting
deal
"no
to
with
reasonable efforts” and
inevitable
complex
a
early
“at
date” with
date.”
with
human realities as it is
reflec-
some future
“at an
1—102(l)(A)(ii)
piecemeal
legisla-
§
reactions
state
Compare
Ann.
tion
Tenn.Code
36—
successive,
(Supp.1994)
May
Act of
ch.
tures to numerous
and sometimes
inconsistent,
(in
(codi-
Congress
§
from
As its name implies, prelimi prevented order that from re nary hearing prior occurs adju to both the moving Victoria L. from Justin L.’s custo dicatory hearing and dispositional dy was entered on the basis of Justin L.’s hearing. 1—117(c); Tenn.Code Ann. 37— change verified for a of custody. 16(a). 6(c), Tenn. R. Juv. P. Its function is *35 Justin L. did not claim that L. Victoria was juvenile to allow the court to decide wheth abused, dependent, neglected, or and the er the child should be removed from the petition did not refer to the statutes or parent’s custody pending adjudicatory governing dependency rules and neglect hearing. 1—117(c); § Tenn.Code Ann. 37— Instead, proceedings. alleged Justin L. 16(c). Tenn. R. juvenile Juv. P. The court that currently residing Victoria L. was is allowed to consider hearsay reliable him, that Jamie F. denied him visita making decision, its 16(a), Tenn. R. Juv. P. tion with Victoria L. when the child was in and it can order the child removed from custody, her that living Jamie F.’s ar the parent’s custody finding based on a of rangements employment and had become “probable cause” that depen the child is a months, during unstable the preceding dent, neglected, child, or abused Tenn. that she had failed to care for L. Victoria 37-l-114(a)(2) (2001).50 Code Ann. properly. argued Justin L. that these The March 1996 temporary custody facts change amounted to a material order resulted from a preliminary hearing, circumstances, and that it would inbe not an adjudicatory hearing, and the re- best interests of if Victoria L. he was straining order was designed merely to custody awarded of her. preserve quo the status in advance of the preliminary hearing. temporary The juvenile cus- The court’s March tody order implicit judicial contains an 2001 restraining order does not contain an finding probable of cause that explicit implicit or finding that Victoria L. dependent, neglected, or dependent, abused. It was neglected, or abused. The does not finding, contain a explicit either purpose obvious of this order was to main- parent’s In order to remove a safety child from a or of removal of the child from the custody finding probable based on a of cause jurisdiction, court's and that there is no less dependent, neglected, that the child is or drastic altеrnative to removal of the child abused, juvenile court must also find parent’s custody. from the Tenn.Code Ann. probable cause there is an immediate 37-1-114(a)(2). threat either of harm to the child’s health or relief criminal pro- post-conviction for in the quo pending
tain the status further courts, ultimately petition may ceedings. juvenile The court entered sev- custody L.’s successful. continuing orders Justin eral leading up L. in the months argument This is meritless. custody on his hearing change petition, for convictions sentences Jamie F.’s judicial none of which were based on a ag especially aggravated kidnaping dependency, neglect, finding or abuse. pre a gravated robbery are entitled to order court’s October and until sumption of correctness unless petition Justin contains no granting L.’s a court of have been set aside judicial express finding dependency, ne- Thus, competent jurisdiction. have re we abuse, changing an order glect, consider peatedly recognized a court not custody of minor child does necessar- ing finding. Accordingly, such ily imply § 36-1- rights on TenmCode Ann. based relying court Tenn. erred judg 113(g)(6) beyond need not look § 36-1-113(g)(3) as ground Code im ment of and the sentence conviction terminating parental rights criminal in order to posed by the to Victoria ground for termi determine whether See, e.g., Dep’t nation applies. State C. F.E.B., v. 2003 WL Children’s Servs. D.L.K., *4; No. Incarceration a Sentence of Ten M.P.P. v. Under Imposed E2001-00706-COA-R3-CV, Years or When the 2002 WL More 2002) Eight Mar.26, (Tenn.Ct.App. Than Years Child Was Less at *5 filed); (No R.App. P. application Old Copeland, Adoption In re 43 S.W.3d juvenile court relied also If the mere (Tenn.Ct.App.2000). 1—113(g)(6) on Tenn.Code Ann. 36— *36 re- possibility might that a conviction be terminating parental rights. Jamie F.’s versed, reduced, some a sentence at or This ground applies where: future were sufficient to defeat point the confined in a cor- parent The has been termi- ground of this for application the facility any or of rectional detention rights, nation then TenmCode parental of a by order court as result of type, § 1—113(g)(6) Ann. be dead would 36— act, criminal a sentence of ten under the General letter. do not believe that We (10) and the years, child more this Assembly intended result. Jamie (8) age of at time eight years under the to the presented challenge has no other court. the sentence is entered the on Tenn.Code court’s reliance 1—113(g)(6). TenmCode Ann. Jamie 36— as for ter- 1—113(g)(6) ground Ann. 36— juvenile court’s challenge F. does not the According- minating parental rights. her in a finding that is confined correction- she finding ly, we the court’s affirm facility separate sentences of al under two be parental rights that should of convic- years or more as a result her ten contained ground terminated on the especially aggravated kidnaping for tions 1—113(g)(6). Ann. TenmCode 36— addition, she aggravated robbery. Audrey concedes that S. and Victoria both IV. years under of when eight age L. were InteRests Best of imposed. Neverthe- these sentences were L. S. and Victoria less, juvenile court argues she that the above, juvenile court the parental explained terminating rights As erred at least of properly found the existence has filed a ground because she
877 statutory ground terminating parental rights one for of statutes rec- Ja- rights ognize an parental respect possibility terminating mie F.’s the always According- parental rights both unfit is not parent’s ly, juve- we must now decide whether the the child’s best interests. correctly nile termi- determined that concept of the child’s best interests nating parental rights Jamie F.’s be would proceed evolved in the context of divorce
in the best
interests of these children.
ings
migrated
legal
has now
from
dis
popular
course into
culture. What is best
A.
depends
on values and norms
children
goal
every pro
The ultimate
of
upon
persons
reasonable
can
which
differ.
ceeding involving
custody
the care and
of a
192;
at
Moody,
White v.
171
Ride
S.W.3d
is to
promote
child
ascertain and
the
Riendeau,
out v.
761 A.2d
296 n. 5
However,
impor
child’s best interests.
as
(Me.2000). Thus, critics of the best inter
are, they
tant as these
do not
interests
point
ests of the child standard often
out
phase
every
dominate
of a termination of
non-specificity
that its
to unpredict
leads
proceeding.
rights
in
best
able and inconsistent outcomes. Troxel v.
of
child
not
terests
the
do
become the Granville,
530
120
at
U.S.
S.Ct.
paramount
until
consideration
the trial
(2000) (Kennedy, J., dissenting);
2079
court has
parent
determined that
the
is PRINCIPLESOF THE Law OFFAMILYDISSOLU
unfit
clear
convincing
based on
evi
(Tentative
1998);
TION 2
n. 2
No.
&
Draft
grounds
dence
one or more of the
Artis, Judging
Julie E.
the Best Interests
termination listed in
Judges’
Ten
Child:
Accounts
§ 86-1-113(g).
parent
Once a
been
has
Soc’y
Doctrine,
der Years
&
Rev.
Law
unfit,
found
interests
(2004).
774-75
parent
diverge.
child
While
However,
pointed
have
out that
others
parent’s
do
evaporate upon
interests
not
persistent
the courts’
reliance on the best
unfitness,
Kramer,
finding
Santosky v.
suggests
interests
the child standard
1388, 1394-95,
U.S.
S.Ct.
appealing
no more
formulation is like-
(1982),
While a of unfit of in the Domestic Relations United (2d ed.1987) 20.4, a necessary prerequisite § ness is to the at 495 [herein- States parental rights, finding termination of of after The Law of Domestic Relations].51 necessarily Clark, not require unfitness does that of the Professor the author one of parent’s treatises, the rights be terminated. White seminal has domestic relations Moody, v. 171 (Tenn.Ct.App., any experienced S.W.3d 187 observed that if “few (Mar. 2004), perm. 21, 2005); app. judges lawyers denied think ... [the In re Termination Rights goes very Parental to child’s standard] best interests of V., 1, only Alexander 271 far deciding Wis.2d 678 N.W.2d toward cases. That can (2004). 856, parental by considering 863 Not all miscon be facts of the done the Thus, background duct is irredeemable. case of against Tennessee’s individual the Cahn, forty-nine Reframing 51. courts The in states and the nations. Naomi R. Child charged by District of Columbia have been Decisionmaking, Custody 58 St. LJ. Ohio statute to use the best child interests of the (1997). 9-14 custody it standard when comes to determi- 878 1—113(i). By § in the time the court held to be relevant earlier
factors 36— it analysis, 2 reaches the best interests will cases.” Domestic Relations Law of 20.6, already finding, supported at 479. have made evidence, convincing clear the years, In recent the Tennessee poses unfit or a risk of substan- parent Assembly, state legisla General like other of child. Ac- tial harm the welfare the tures, to codify has undertaken the factors the focus the cordingly, per- exclusive on consider when called that courts should child in spective of the the best interests in upon to a child’s best interests ascertain analysis parent’s does not contravene the various circumstances. In termination rights. constitutional one, parental this the rights cases such as Assembly provided has the courts General
with a list of nine faсtors non-exclusive B. 1—113(i).52 consider. Tenn.Code Ann. 36— Ascertaining a child’s inter best Thus, ascertaining a best interests child's not ests does call a rote examination proceeding in is a fact-inten a termination 1—113(i)’s Ann. each of Tenn.Code 36— inquiry53 requiring the courts sive determination of nine factors and then a statutory the weigh regarding the evidence tips the the factors whether sum factors, fac any as as relevant well other The rele against parent. favor of or tors, irrevocably whether determine vancy given each factor weight be severing relationship par between the facts each case. depends unique on ent and the child is the child’s best Thus, upon the circumstances of depending v. at interests. White Moody, 171 S.W.3d particular parent, and a particular child 192. may very factor the consideration one analysis. the outcome of the must well dictate child’s best interests child’s, In Moody, v. White S.W.3d at viewed from the rather than be case, statutory Moody, v. White balancing no delicate parent’s, perspective. Hammett, *5; In re required. factors is As 2004 WL at found, all of the correctly virtually *2 all or No. WL L.N., In less re Oct.23, 2003); statutory weigh, factors more (Mich.Ct.App. Jr., re (S.D.2004); terminating heavily, favor 690 N.W.2d statutory rights, and none of the Marriage Pape, 139 Wash.2d (1999). Ac against termination. A focus factors militates P.2d is whether there cordingly, question of the child is common perspective that indi non-statutory considerations through list of manda are running theme it not in the best inter- cate that would tory specified factors *38 context, Assembly we have noted that de- 53. In another General has 52. The Tennessee analysis broad and 'best interests' is “[t]he guide to vised different sets of factors subjective. employ hard and fast It does not of the child's best inter- courts' consideration fact-dependent. The largely Ten and is rules See, e.g., Tenn.Code ests in other contexts. candidly Supreme noted Court has nessee 36-6-106(a) (2001) (divorce § other Ann. analysis pro cannot that the 'best interests' 36-6-108(c) § proceedings); Tenn.Code Ann. custody and visita perfect vide to solutions relocation); (2001) (parental Ann. Yeager Yeager, 01A01- disputes.” v. No. tion visitation); (2001) (grandparent § 36-6-307 9502-CV-00029, *4 WL 422470, at 1995 36-6-404(b) (Supp.2004) Tenn.Code Ann. 19, 1995) (No (Tenn.Ct.App. July (parenting plans). filed) (citations omit R.App. application 11P. ted).
879 caretakers, Audrey day-to- to ests оf S. or Victoria L. termi- their current and their rights. nate F.’s parental Jamie day change any significant lives not in will respect parental rights if her are terminat- Jamie on F. relies three non-stat ed. utory in that arguing considerations it is Audrey not in the best of interests S. and an The first consideration raises parental L. rights Victoria for her to be question interesting regarding academic First, terminated. claims that there she is availability statutory of the procedures S., waiting adopt Audrey no one involuntary parental termination of parental that termination her rights of rights any in that the absence of evidence Audrey only would therefore leave S. be adopted parent’s paren child will if a single parent for the rest of her life. However, tal rights are terminated.54 Second, she terminating contends that her case an appropriate is not one which to parental rights deprive Audrey would S. most, question. address this At Tennessee L. opportunity to re only law requires adoption that an con be support ceive financial from following her templated point at some in the future.55 Third, prison. eventual release from trial, At the termination Jamie attor she that F.’s regardless *39 (1977) Pa. (holding physical A.2d problems relatively mental and and parental rights that "a age, to terminate advanced it did show not that a future may only brought (No ... adoption adoption impossible) R.App. when is P. Tenn. Moore, contemplated”) filed). and In re application 306 N.C. cases, terminated, the a he that he In some child’s loss of and answered be- to right support future Audrey legally enforceable that was in S.’s lieved termination parent appropriate from a is an consider attorney Jamie F.’s fol- best interests. in deciding ation in whether termination is him, “Well, by asking is there up lowed C.J.H. v. the child’s best interests. anyone step place in her as going who is to A.K.G., M2001-01234-COA-R3-JV, No. parent[?]” Terry responded a as fol- S. (Tenn.Ct.App. *7 WL lows: 2002) (No 11 appli P. Aug.9, R.App. Yes, yes, My girlfriend. is. Been there filed). not this cation It does follow that years. a half together for three and every a in consideration is relevant factor just year final of law She’s started her case, abundantly In it is clear case. this openly school and she has—we have at the termi presented from the evidence this.... knows [Au- talked about She on Tеrry nation trial that S. and Wilma S. drey [Audrey her. S.] S.] [Au- and loves hand, L., Kelly L., and and the one Jason in people about drey S.] has been asked other, willing on are Christina B. the life, and she has omitted her mother her financially support able to these children ... my girlfriend. And and mentioned already so for most and in fact have done yes, open willing adopt she to is It is clear that of the children’s lives. also [Audrey S.]. parental refusing to terminate Jamie protecting ab in name of an rights the appeal on contains no evidence record Audrey of legal right and Victoria stract S. testimony. contradicting this monetary support future L. to receive
The second consideration nothing F. do to ad from Jamie would premise. simply It is based on flawed of the interests these children. vance best say to that the termination incorrect F. not claim that she is cur Jamie does deprive Au parental rights support payments Jamie F.’s will rently able to make children, drey opportunity pat has consistent S. L. she tern, many developed years, over will receiving support financial from Jamie fi refusing support her children fully in Nothing F. in the future. nancially in face of court orders even prevents Jamie court’s orders Nothing so. in requiring her do sending money to the caretakers from pattern would suggests record a re Audrey and Victoria L. with S. parental if Jamie F.’s change the future support it the chil quest that be used to were not terminated. rights Terry unlikely In event that S. dren. Kelly accept L. and L. refused Jason consideration, Ja- the third advancing In simply put it money, F. could Jamie her lengthy mie F. seeks transform college savings ac month
aside each ground for statutory incarceration from a other investment vehicle count or some into fac- parental rights her terminating it to S. and Victoria offer termination. against tor that militates majori age essence, precisely arguing once have reached F. is par- ty. terminating parental rights herself from An order she has disabled because lives requiring day-to-day from a former prevents ticipating state in her children’s that re- toward in criminal conduct payments by engaging to make future parent incarceration, cannot be it the child. Tenn.Code sulted her support 36-1-113(7 )(1). and Victo- way prevents It in no the best interests rights. ria L. to terminate undertаking parent the former from also It borders hubris. argument This payments voluntarily. make such *40 ignores completely compelling rights the need of the of both bests interests children, juvenile Audrey L. for the court S. Victoria a stable and nevertheless permanent terminating parental rights erred in longer home life that will her no be subject failed disruption separate at because it to make a the whim of Jamie explicit finding parent that is an she unfit poses or a risk of harm to substantial juvenile correctly court con welfare of the children. to Ja- According together, statutory cluded that taken F., every mie terminating order parental § factors contained Tenn.Code Ann. 36- rights constitutionally to con- required is l-113(i) weigh heavily favor of terminat tain finding such a of a parent’s because ing F.’s parental rights. Jamie F. right, protected by fundamental which is pointed has to no other consideration that both the United States and Tennessee would undermine this conclusion. When Constitutions, custody to the care and of perspective viewed from the Audrey of S. his or her minor children.56 L., can Victoria there be no doubt that This argument misconceives the rela- parental of rights termination Jamie F.’s is tionship operation between the of the ter- in the best interests of these children. mination statutes and the constitutional re- Accordingly, juvenile we affirm the court’s quirement that a parent’s rights “before determination that terminating Jamie F.’s terminated, can be there must a show- parental rights is in the best interests of ing parent that or is unfit that substan- tial harm to child will result if parental rights not are terminated.” In re Swan- V. son, 2 188; at accord Hawk v. S.W.3d Parental Unfitness Hawk, 855 S.W.2d at This Substantial Harm court repeatedly recognized has Jamie F. argues that if even statutory grounds pa- for termination juvenile court properly found the existence rental rights listed in Ann. statutory one or more grounds for § ter 1—113(g) examples are all of parental 36— parental mination her rights with re par- conduct and situations that a render spect L., S. and Victoria and ent unfit pose risk of substantial harm even if the correctly deter Moody, the welfare a child. White v. mined *5; C.D.C., termination of parental Jr., her 2004 WL In re trial, 56. At Jamie F. argument application limited her argu- of Jamie F.’s constitutional requirement separate particular constitutiоnal ground of a ment to the for termination finding parental unfitness or § substantial contained in Tenn.Code Ann. 36-1- harm to cases in 113(g)(6). separate finding which is based If ground on the contained in Tenn.Code Ann. unfitness or substantial harm is constitution- 36-1-113(g)(6). § appeal, ally required On she has broad- in the context terminations argument ened 36-1-113(g)(6), to include termination based on Tenn.Code it Ann. any statutory grounds based on of the why con- to see finding difficult such a would 36-1-113(g). constitutionally tained in Tenn.Code required As not also be in the rule, general arguments not in the raised context of terminations based on all grounds trial court will not be addressed first other for termination listed in Tenn. McCaskill, appeal. Accordingly, time on 36-1-113(g). Norton v. Code Ann. we (Tenn.2000); Simpson S.W.3d argument v. will address Jamie in the Union, Cmty. presented Frontier Credit 810 S.W.2d broader form in which it was (Tenn.1991). However, appeal though we are aware of even court did not legal principle, parties no point- and the opportunity have have the rule on this broader none, logically argument ed us to that would restrict in the first instance. *41 882 2003), E2003-01832-COA-R3-PT, Jan.23, (Tenn.Ct.App. perm. app. WL 2004
No. 2004) 7, (Tenn. 1243994, 27, 2003), (Tenn.Ct.App. May app. June dis- granted at *8 (No filed); Marr, 11 R.App. application P. Tenn. v. 127 sub nom. Osborn missed Whaley, v. Dep’t (Tenn. 2004). State Children’s Servs. Jan.23, In that S.W.3d 737 of E2001-00765-COA-R3-CV, 2002 WL No. case, a to terminate petition a mother filed (Tenn.Ct.App. May *9 at two-year-old parental rights of her 2002) (No 11 R.App. application Tenn. P. Marr, re biological father. In child’s filed); v. Dep’t State Children’s Servs. of at *1. The termination WL E2000-02806-COA-R3-JV, C.S.M., No. solely ground on the contained was based (Tenn.Ct.App. at *6 2002 WL (con- § 36-l-113(g)(6) in Tenn.Code Ann. (Tenn. Mar.13, 2002), app. perm. denied or fa- in a correctional detention finement 16, 2002); at Sept. Ray Ray, v. 83 S.W.3d cility years of ten or under a sentence n. 7. child was under more entered when the rights every parental In case which Marr, 2003 age). of In re WL eight years terminated, “finding a are there must be Following the termination at *1. convincing evi- by the court clear and trial, the mother the trial court found that grounds o[f] for dence that the termination of had the elements Tenn.Code established rights have been parental guardianship or and con- 36-l-113(g)(6) by Ann. clear established,” 36-1- Marr, In evidence. re WL vincing 113(c)(1), con- must be finding and this However, the trial court at *5. by the order entered tained a written terminate parental the father’s refused to 36-l-113(k). court, trial Tenn.Code Ann. it the mother rights, because found Thus, has long as as the court proven had also that continuation not correctly that at one of found least parent-child relationship would threat- pa- statutory for termination of grounds child, i.e., posed en the welfare of the exists, rights re- constitutional rental harm to the welfare of risk of substantial unfit- showing parental quirement of Marr, 152640,at In re 2003 WL the child. harm to the risk substantial ness *5.57 In of a child has been satisfied. welfare the trial court’s effect, parent/sub- appealed mother the constitutional unfit is within father’s analysis harm subsumed refusal to terminate the stantial statutory analysis held, conformity of whether This rights. grounds proper- law, statutory termination have been for that once a prior our case pa- ly separate finding A established. has been estab- ground termination harm, unfitness or substantial require- rental lished, there is no constitutional of at of the existence finding addition to a the trial court make an addition- ment that statutory would grounds, least one of the re harm. In finding al substantial redundant. *1, Marr, *13. We 2003 WL trial court judgment reversed conclusion, only reaching the case for determination and remanded the Tennessee thing gives pause us pa- of the father’s whether grant decision Supreme Court’s rights in the best interests rental permis- R.App. application P. 11 Marr, 152640,at In re 2003 WL Marr, the child. No. in In re M2001- appeal sion to 02890-COA-R3-CV, 152640 *13. WL it, tence, produced ren- or the behavior that not apparently did consider The trial court parent. dered him an unfit lengthy criminal sen- father’s whether the *42 Second, granted 741-42. the court has Supreme
The Tennessee
Court
S.W.3d at
R.App.
the father’s Tenn.
P.
application
grant
R.App.
11
declined
Tenn.
repeatedly
to
for permission
appeal
to
to decide “wheth- P. 11
in other cases in which
applications
er
Code
36-
Tennessee
Annotated section
the
conclu
this court has reached
same
...
l-113(g)(6)
requires
showing
of sub-
3044909,
Moody,
sion.
v.
2004 WL
White
parent’s
stantial harm to the child before a
(Mar.
2005);
*5,
21,
app.
at
perm.
denied
rights may be terminated.”
v.
Osborn
v.C.S.M.,
Dep’t
State
Children’s Servs.
Marr,
every terminating parental rights. order opinion. concurring interpret We do not court’s actions First, expressly this manner. the court J., CAIN, concurring. B. WILLIAM it stated that was not “the reaching merits my longstanding I that a adhere view separate showing whether of substan “preponderance of evidence” tial harm to standard constitutionally the child is required convincing and a grounds when for termination ex “clear evidence” ist other incompatible under Code standard are with each Tennessee Annotated sec Marr, 1—113(g)(6).” tion either in trial Osborn v. 127 and cannot be reconciled 36— appellate courts. The effort court or compatible, as as these standards
make Ray, v. 83 S.W.3d Ray
serted progeny are in
(Tenn.Ct.App.2001), and its
my incorrect reasons stated view
length O’Linger, v. Estate of Acuff *43 re and In (Tenn.Ct.App.2001)
S.W.3d 527 and M.J.P., No. M2002-02235-
Z.J.S.
COA-R3-JV, filed June 2003 WL con (Tenn.Ct.App.2003)-Cain,
curring). the ex-
Regardless disagreement, of this by scholarly authored opinion
haustive majority Koch for the discloses
Judge under scrutiny
case withstand that would clear,
any cogent convinc- definition of concur in the
ing I therefore evidence.
judgment. BRILEY, et al.
Edmund R.
v. CHAPMAN,
Gary et al. W. Tennessee, Appeals
Court Section, at Nashville.
Western
July 2005 Session.
Aug. Appeal Denied
Permission Dec. 2005.
Supreme Court Murfreesboro, Tennes- Fly of
Frank M. Briley and R. Appellants, Edmund see Briley. Margaret Coleman by Appellees. No appearance notes of whether her parental terminated, ney rights Terry why asked he thought are S. S. and Victoria L. will parental rights continue to reside with be should See, Cressler, 394, e.g., Douglas (1982) (Carlton, E. Requiring 293 S.E.2d 138-39 Beyond J., dissenting) Reasonable (arguing Doubt Parental that termination Proof Cases, Rights Termination 32 U. Louisville J. would not advance the children’s best inter (1994) (arguing 798 that "the ests because record did not show that Fam. Moore, child’s interests are not served adoptable) termination were re with In 293 S.E.2d parents’ rights of natural (implicitly rejecting unless a new at 134 Justice Carlton’s family agreed is adopt argument available who has adoptability prerequisite that is a S.O., recognizing affected child” parental rights), but that "the of termination In re 483 jurisdictions majority (Iowa 1992) require do (holding not N.W.2d 604 state adoptive to show that placement an difficulty finding adoptive is an home for prerequisite available as a terminating pa problems children with serious emotional is rights’’); Lombardo, Note, rental Catherine refusing an insufficient basis for to terminate Adoption Always Need "Waiting parental Not Be rights), in the ex rel. v. Iowa Perkins Wings” Perkins, Rights (Iowa Parental Be Can Termi Ct.App. 325 N.W.2d 765 Before nated; 1982) (holding Considerations possibility Procedures Ter that a adoption is mination, (1991) ("Much 12 J. prerequisite Juv. L. 47 parental not a to termination of rights). debate has question occurred over the adoption an pending whether must be before may rights.”); courts terminate 36-1-113(a), 55. Tenn.Code 21.7, at (d)(3)(C)(ii), (h)(1), (l (g)(8)(A), )-(p); see State Law Domestic Relations (noting that authorizing D.G.B., statutes the involun Dep't Children’s Servs. v. No. tary E2001-02426-COA-R3-JV, parental rights only not WL n adoption 2002) facilitate but also (Tenn.Ct.App. "enable courts Sept.10, permanently (juvenile to remove refusing children from harmful court erred in to terminate environments, parents damaging or parental rights part finding whether based adoption possible”); Gary not unadoptable see also R. child was and that termination Govert, interests; Rights: Termination Parental Put not therefore in the child’s best Place, ting Love in Its place 63 N.C. L.Rev. while the evidence showed that future Burns, (1985). Compare 1183 n. 55 In re ment would difficult because of the child’s