In re Braxton M., 070517 TNCIV, E2016-02172-COA-R3-PT

Docket Nº:E2016-02172-COA-R3-PT
Opinion Judge:THOMAS R. FRIERSON, II, JUDGE
Party Name:In re BRAXTON M. et al.
Attorney:Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Kevin M. Brent Hensley, Greeneville, Tennessee, for the appellees, Donna N. and William N.
Judge Panel:Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.
Case Date:July 05, 2017
Court:Court of Appeals of Tennessee
 
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In re BRAXTON M. et al.

No. E2016-02172-COA-R3-PT

Court of Appeals of Tennessee, Knoxville

July 5, 2017

Session March 23, 2017

Appeal from the Circuit Court for Greene County No. 15A004 Beth Boniface, Judge

This is a termination of parental rights case, focusing on Braxton M. and Briley N., the minor children ("the Children") of Kevin M. ("Father") and Heather N. ("Mother"). On March 21, 2011, the Washington County Juvenile Court ("juvenile court") entered an order removing the Children from the parents' custody and placing them in the physical custody of Mother's father and stepmother, William N. and Donna N. ("Maternal Grandparents") in response to a dependency and neglect action initiated by the Tennessee Department of Children's Services ("DCS") due to Briley's drug-exposed condition at birth.1 In September 2011, the juvenile court entered an order maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the option of petitioning for return of custody at a later date. On April 15, 2015, Maternal Grandparents filed a petition in the Greene County Circuit Court ("trial court") to terminate the parental rights of the parents and adopt the Children. Mother subsequently surrendered her parental rights to the Children and is not a party to this appeal. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Father upon its finding by clear and convincing evidence that Father had abandoned the Children by willfully failing to financially support and visit them. See Tenn. Code Ann. § 36-1-113(g)(1). Finding Father to be a putative father, the trial court also applied the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v) to find clear and convincing evidence that Father had failed to manifest an ability and willingness to assume legal and physical custody of the Children and that placing the Children in Father's legal and physical custody would pose a risk of substantial harm to their physical or psychological welfare. The court further found by clear and convincing evidence that termination of Father's parental rights was in the Children's best interest. Father has appealed. Having determined that the trial court erred in applying an amended version of Tennessee Code Annotated § 36-1-113(g)(9)(A) not controlling in this action, we further determine the statutory grounds provided in subsection -113(g)(9)(A)(iv)-(v) to be inapplicable to Father under the controlling version of the statute. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights to the Children.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part; Case Remanded

Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Kevin M.

Brent Hensley, Greeneville, Tennessee, for the appellees, Donna N. and William N.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

When Braxton was born in September 2007, Father was seventeen years old and Mother was sixteen years of age. At the time of the July and August 2016 trial in this action, Father was in the custody of the Greene County Jail but was transported to appear before the trial court. Father testified that although Mother and he were never married, they lived together with Braxton for several years, at first residing with Mother's biological mother, then with Maternal Grandparents, and ultimately on their own. Father explained that he graduated from high school when he was eighteen and that he and Mother found "a place" at that time, keeping Braxton with them.

According to Father, when Braxton was two years old, Father and Mother developed addictions to pain medication. At the age of nineteen, Father pled guilty to criminal charges of aggravated burglary and theft over $1, 000, resulting in a sentence of three years' probation. Father subsequently was arrested again and entered a guilty plea to eight counts of theft over $1, 000 and violation of probation, resulting in a sentence of five years' and two days' incarceration. When Father entered custody in the fall of 2010, Mother was expecting Briley, who was born in early March 2011. Mother also testified at trial, essentially corroborating Father's testimony concerning the years preceding Briley's birth.

Upon a referral at the time of Briley's birth, the family became the subject of a DCS investigation because Briley was born exposed to drugs. DCS initiated a dependency and neglect action in the juvenile court, requesting emergency removal of the Children from the parents' custody and placement with Maternal Grandparents. In an order entered March 21, 2011, the juvenile court granted physical custody of the Children to Maternal Grandparents. Father testified that although he was incarcerated at the time of the Children's removal, he was transported to appear in the juvenile court for a March 2011 hearing during which he, while represented by court-appointed counsel, agreed that temporary placement of the Children with Maternal Grandparents would be in the Children's best interest.

The juvenile court subsequently entered an order on September 6, 2011, maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the ability to petition for custody at a later date. We note that no juvenile court orders are in the record before us. However, the effects of the juvenile court's actions were described by the trial court in its final decree and are not in dispute on appeal. The record contains no indication of whether the Children were adjudicated dependent and neglected by the juvenile court.

According to Father, he served twenty-seven months and seventeen days of his approximately five-year sentence before being released on November 20, 2012. Although Father returned to custody in 2013 to serve thirty days for a trespassing conviction, Maternal Grandparents do not dispute that Father visited the Children fairly regularly from November 20, 2012, through the end of 2013. Father visited the Children primarily at Maternal Grandparents' home but also sometimes at the home of the Children's paternal grandparents ("Paternal Grandparents"). Father testified that he would often bring his then-paramour, L.H., and her daughter, S.R., who was approximately the same age as Briley, to visit with Briley and allow the girls to play together. Undisputed testimony demonstrated that Father, the Children, L.H., and S.R. accompanied Paternal Grandparents and other family members during a five-day vacation to an out-of-state amusement park in 2013. Father, L.H., and S.R. also visited with the Children over the course of approximately one and one-half days during the 2013 Christmas holiday.

Father testified that he was not incarcerated from January to June 2014. A 2014 calendar maintained and presented by Donna N. ("Maternal Grandmother") reflected that in 2014, Father visited the Children once in March for Briley's birthday, twice in April, and once in May. A note written on the calendar for the month of April stated that Maternal Grandparents had "set up visitation for [Father] to visit every other Sun. for 2 hrs. from 2-4." Father's next three visits took place on alternate Sundays in 2014: April 13, April 27, and May 11. Father acknowledged that near the end of the May 11, 2014 visit, he promised Braxton that he would purchase juice boxes and bring them back later in the day so that Braxton could take the juice boxes to school. Father admitted forgetting about the juice boxes until the next day. He stated that the days slipped away thereafter until he felt he had missed the opportunity to bring the juice to Braxton. L.H., who had been present during the May 11, 2014 visit, testified that Father and she did not return with juice boxes for the Children that day because Father and she "were on drugs."

In late June 2014, Father was arrested and served twenty days in jail for conviction of what he described as evading arrest or filing a false report. He was subsequently involved in an altercation in August or September 2014, which gave rise to his entering a guilty plea to a charge of simple assault on December 8, 2014. As a result, Father was incarcerated from December 31, 2014, through February 2015, and was then sent to court-ordered rehabilitation in Kingsport, Tennessee.2 Father testified that he completed rehabilitation in March 2015. However, Father was again incarcerated in October 2015 for violation of probation and was subsequently charged with introduction of contraband...

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