Charles D. Susano, Jr., J., delivered the opinion of the court, in which John W. McClarty, J., joined. D. Michael Swiney, C.J., filed a separate opinion concurring in part and dissenting in part.
This is a termination of parental rights case. The case proceeded to trial on the amended petition of the Department of Children's Services seeking to terminate on multiple grounds the parental rights of L.M. to his children, K.F.R.T., L.E.M.R., and B.A.M.R. (collectively the children). The trial court dismissed the petition after a bench trial, finding and holding that DCS "ha[d] failed to prove by clear and convincing evidence any ground sufficient to justify termination of [father's] parental rights." Whittney N.L. Good, guardian ad litem for the children, appeals. We reverse because we hold that the evidence clearly and convincingly shows that father is guilty of a pattern of criminal conduct "exhibit[ing] a wanton disregard of the child[ren]." Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). We find clear and convincing evidence that it is in the best interest of the children to terminate father's parental rights.
The children, along with a fourth sibling, Analilia R.,
No. E2015-00479-COA-R3-PT, 2015 WL 7567090, at *1 (Tenn.Ct.App.E.S., filed Nov. 24, 2015). Father is a Mexican national who now lives in Mexico.
The children and their sibling were adjudicated dependent and neglected in April 2010. DCS filed a petition to terminate father's parental rights to the four children in March 2012. Later, DCS filed an amended petition. It was this pleading on which this case proceeded to trial in January 2015.
DCS sought to terminate father's rights to the children on four grounds: noncompliance with a permanency plan, failure to support, persistence of conditions, and wanton disregard. As previously noted, the trial court refused to terminate father's parental rights because it held that there was insufficient evidence to establish any of the four grounds.
The notice of appeal in this case was filed by the GAL. She challenges all of the trial court's ultimate findings with respect to the four grounds alleged in the amended petition filed by DCS. She also states that, in the event we find and hold a ground for termination was clearly and convincingly established by the evidence, we should go further and hold that termination is in the best interest of the children. DCS, while a technical appellee in this case, urges us to terminate father's parental rights.
On our review, this Court has a duty to examine whether the evidence preponderates against the trial court's findings of fact. In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.2006). The trial court's findings of fact are reviewed de novo upon the record accompanied by a presumption of correctness unless the preponderance of the evidence is against those findings. Id.; Tenn. R.App. P. 13(d). "We review all issues of law de novo upon the record with no presumption of correctness." In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002) (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993)).
"Both the United States and Tennessee Constitutions protect a parent's right to the custody and upbringing of his or her child." In re Swanson, 2 S.W.3d 180, 187 (Tenn.1999) (citing Stanley v. Illinois, 405 U.S. 645, 650, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn.1994)). This right is not absolute and may be terminated if — and only if — "a court finds that one or more of the statutorily defined grounds for termination has been established by clear and convincing evidence." Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002) (citing Tenn.Code Ann. § 36-1-113(c)(1)). "`Clear and convincing evidence' is `evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'" In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992)).
We first address whether the trial court committed error in holding that the termination of father's parental rights to the children was not supported by clear and convincing evidence of failure to support. Father does not dispute that he failed to pay child support. However, willfulness, ability, and intent are decisive here. It is not enough that a parent fails to pay child support. DCS and the GAL failed to prove that father had the means and ability to pay during the relevant four-month period preceding his incarceration. The trial court made detailed findings as to this issue, and the record does not preponderate against these findings. We agree with the trial court's decision in this regard.
We now address whether the trial court erred in holding that the termination of father's parental rights to the children was not supported by clear and convincing evidence of substantial noncompliance with a permanency plan. We extensively discussed this issue in In re Analilia R. when we affirmed the trial court's failure to find this ground with respect to Analilia. The trial court made detailed findings as to father's efforts to comply with the requirements of his permanency plan, which were hampered both by geography and a language barrier. The evidence in the record on appeal does not preponderate against these findings. We affirm the trial court on the issue of substantial noncompliance with the permanency plan.
Next, we examine whether the trial court erred in holding that the termination of father's parental rights to the children was not supported by clear and convincing evidence of persistence of conditions. In In re Analilia R., this Court affirmed the trial court's termination of father's parental rights to Analilia on the ground of persistence of conditions. In the instant appeal, the GAL argues that the exact same evidence supports the exact same conclusion regarding persistence of conditions relative to the children. We disagree. In In re Analilia R., we noted father's criminal history and pattern of instability as part of our analysis of persistence of conditions. However, we also discussed the different special and significant circumstances of that case as they pertained to Analilia's severe health problems. This latter fact distinguishes the present appeal from In re Analilia R. We hold that this distinction compels a different outcome as to this issue in this appeal.
We now turn our attention to the issue of wanton disregard. On the allegation of this ground, we hold that there is an abundance of evidence that clearly and convincingly shows that father, by his pattern
The shorthand label of "wanton disregard" is frequently used to describe a ground in the statutory scheme of abandonment as follows:
Tenn.Code Ann. § 36-1-102(1)(A)(iv). In the case now before us, it is undisputed that the children's father was incarcerated in the United States from March 2014 to well into the fall of that year. The record reflects that the amended petition was filed by DCS on June 11, 2014. Hence, subsection (1)(A)(iv) of the statute is implicated by the incarceration dates in this case.
The seminal case in Tennessee with respect to the ground of wanton disregard is In re Audrey S., 182 S.W.3d 838 (Tenn.Ct. App.2005), an opinion authored by now-retired Justice William C. Koch, Jr. when he was a member of the Court of Appeals. In Audrey, the Court affirmed the trial court's decision to terminate a parent's rights on two of the three grounds found by the trial court. One of the two was the ground of wanton disregard. In the course of its opinion, the Court said the following:
Id. at 866-68 (internal citations omitted). In Audrey, the Court of Appeals opined that wanton disregard can be based upon bad conduct that occurs at any time prior to incarceration:
Id. at 871 (emphasis added). The trial court in the case now before us, in discussing wanton disregard, appears to have believed that bad conduct, in order to be actionable on the issue of wanton disregard, must be directly connected in some way with the removal of the children. Here is what the trial court said that leads us to this conclusion:
Contrary to the trial court's statement, Audrey teaches that father's D.U.I.s can certainly be considered in this case on the issue of wanton disregard.
The statute now under discussion pertains to "conduct ... that exhibits a wanton disregard for the welfare of the child[ren]." Tenn.Code Ann. § 36-1-102(1)(A)(iv). This part of the statute focuses as much on a parent's state of mind vis-à-vis his children, as it does on the conduct itself. In other words, what does the bad conduct tell us about a parent's concern for the welfare of his children or lack thereof? If you really love and care for your children, would you repeatedly get drunk and drive or batter your wife in your children's presence?
The evidence in this case clearly shows a man who has no qualms about engaging in criminal conduct. On March 16, 2008, father was arrested for two counts of theft of property. On that same day, he was also arrested for D.U.I., driving without a valid driver's license, and violation of the financial responsibility law. A little over a month later, on April 28, 2008, he was arrested for speeding, driving without a valid license, and violation of the financial responsibility law. Exactly one month after that, on May 28, 2008, he was again arrested for D.U.I., driving without a valid license, failure to wear a seatbelt, and violation of the financial responsibility law. On October 4, 2008, he was arrested for D.U.I. and driving without a valid license for the third time in less than a year. He pled guilty to all of the above offenses on November 25, 2008. On June 29, 2009, he was arrested for domestic violence after striking the biological mother of his children in front of them.
Is this the conduct of a man who is concerned with his children's welfare? The question is rhetorical in nature. He says he illegally crossed the border on multiple occasions in an attempt to see his children. Where is the proof of this other than his own self-serving statement? During the five years his children have been in DCS custody, where is the proof that, outside of a couple of phone conversations, he made any real attempt to maintain a meaningful relationship with his children?
Audrey makes an important point that cannot be overlooked:
Id. Father's criminal conduct in fact led to a number of incarcerations and deportations. He must have known — or is certainly charged with knowledge — that his conduct could land him in jail or ensure a one-way ticket back to Mexico. He apparently did not care how all of this could and would affect the welfare of his children.
At the time the children came into the custody of DCS, they ranged in age from ten months to five years. They are now twelve, ten, and seven and a half. At this point in time, they have been with the same pre-adoptive family for over five years.
A memorandum prepared by DCS and filed with the trial court in February 2015 says it best:
As a postscript to this opinion, we would point out that there is nothing in this opinion at odds with our earlier decision in In re Analilia R.. Because the issue of wanton disregard was not raised as an issue on appeal in the earlier appeal, this is the first time the facts underlying that issue are undergoing appellate review.
The evidence on the issue of best interest is clear, convincing, and overwhelming. It is in the best interest of the children to
While we agree with a portion of the trial court's judgment, we reverse the ultimate decision of the trial court dismissing the amended petition of DCS. It results that the parental rights of L.M. to his children K.F.R.T., L.E.M.R., and B.A.M.R. are hereby terminated. Costs on appeal are taxed to the appellee, L.M. This case is remanded to the trial court for enforcement of our judgment terminating L.M.'s parental rights and for collection of costs at the trial court level, which costs are also assessed against L.M.
D. Michael Swiney, C.J., filed a separate opinion concurring in part and dissenting in part.
D. Michael Swiney, C.J., concurring and dissenting.
I concur in most of the majority's opinion. I, however, cannot concur with the majority in its decision to reverse the Juvenile Court's finding as to wanton disregard. I would affirm the Juvenile Court on this issue as well as on all other issues. As such, I also cannot agree with the majority's decision concerning best interest as that issue never is reached if there is no ground for termination.
The majority reverses the Juvenile Court and terminates Father's parental rights to the Children by finding wanton disregard. I generally agree with the majority regarding the broad scope of pre-incarceration conduct that courts may consider relative to the ground of wanton disregard. Nevertheless, there is no bright line test for exactly which conduct constitutes wanton disregard. Incarceration alone is not, except where statutorily prescribed, a ground for termination of parental rights. Our General Assembly has provided when incarceration on its own will suffice as grounds for termination of parental rights. Such an incarceration is not present here. This reality may not be effectively circumvented by relying on the broad record of past behavior courts may take into account in considering the ground of wanton disregard. That which constitutes wanton disregard must be determined in light of the circumstances of each case.
In the present case, the majority accurately outlines Father's record of criminal misdeeds. I do not in any sense belittle the wrongness of Father's offenses. However, going back five or six years to dredge up DUIs, for example, is a stretch when it comes to terminating a parent's right to his or her child, a fundamental right.
I also, respectfully, disagree with the majority when it states that "[t]he Court of Appeals in Audrey opined that wanton disregard can be based upon bad conduct that occurs at any time prior to incarceration...." Audrey did not say that bad conduct at any time in the past, no matter how many years ago, is necessarily relevant to whether there is wanton disregard. This court in Audrey instead held that as to whether parental conduct constitutes wanton disregard for the welfare of the child, it is "of no moment whether that conduct occurred during the four months immediately preceding the parent's incarceration or at some earlier point in time." In re Audrey S., 182 S.W.3d 838, 871 (Tenn.Ct.App.2005). There is a vast difference between "at any time prior to incarceration" and "some earlier point in time." Clearly, in every case there is some point in time at which prior conduct so far in the past becomes irrelevant or at least its impact lessens as to whether a parent has displayed wanton disregard for
The majority also makes much of the fact that Father was arrested and incarcerated in Mexico for four months on a charge of extortion. There is no proof in the record that Father ever was convicted in Mexico on a charge of extortion. It was not Father's burden to prove that he was not convicted, but rather it was DCS's burden to show that he was convicted. I find it more than a little troubling that an arrest without a conviction can be used as proof of wanton disregard in terminating a parent's parental rights. Not every individual arrested has committed the conduct he is accused of having committed.
The majority further calls into question how Father could care for his children when he repeatedly and illegally crossed the border into the United States. On this point, we do not have to guess. The Juvenile Court found that Father's repeated illegal efforts to re-enter our country "were a last ditch, desperate attempt to try and salvage his relationship with his children, however misguided his attempts may have been." The Juvenile Court made this finding based upon its credibility determination as to Father's testimony on this point after hearing Father testify by telephone from Mexico.
We extend strong deference to trial courts' credibility determinations, and we are not to overturn the credibility determination of a trial court absent clear and convincing evidence to the contrary. Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014). This is so even when, as in the present case, the witness testifies by telephone. Our Supreme Court in reversing a majority decision of the Court of Appeals held in Kelly that the same deference appellate courts extend to trial courts' credibility determinations of in-person testimony applies equally to telephonic testimony. Our Supreme Court stated:
Kelly, 445 S.W.3d at 695.
It is troublesome that the majority now appears willing to set aside the Juvenile Court's assessment of Father's credibility and instead substitute its own credibility assessment regarding his stated motives for crossing into our country illegally. Clearly, the Juvenile Court found Father convincing in his explanation. Under Kelly, we are not permitted to conduct our own independent credibility assessment even of telephonic testimony absent clear and convincing evidence to the contrary. I find no such clear and convincing evidence in the record on appeal, and the majority points to none sufficient to overturn the Juvenile Court's determination of Father's credibility and the resulting Juvenile Court's finding as to Father's motives in crossing the border. I, respectfully, disagree with the majority's simply substituting its judgment for that of the Juvenile Court's as to Father's credibility on this issue.
As to a possible argument that, regardless of Father's motives, his habitual illegal border-crossing constituted wanton disregard for the Children, that argument should fail as well. The majority reminds us that Tenn.Code Ann. § 36-1-102(1)(A)(iv),
The Juvenile Court accepted Father's account of his motives as being credible. Under Kelly, absent clear and convincing evidence to the contrary, we are constrained to defer to this credibility determination made by the Juvenile Court. This being so, and for the additional reasons argued above, I would find that the Juvenile Court was correct in declining to find wanton disregard.
As I would affirm the Juvenile Court's judgment in favor of Father as to all grounds for termination, I also, respectfully, dissent from the majority's determination that best interest was proven as the best interest question never is reached in my view.
