In re J.C.D.

• Decision Date: 30 November 2007
• Docket Number: No. E2007-01266-COA-R3-PT.,E2007-01266-COA-R3-PT.
• Citation: 254 S.W.3d 432
• Parties: In re J.C.D., J.D.D., J.A.M., E.O.M., T.D.M., & Q.O.M.
• Court: Tennessee Court of Appeals

254 S.W.3d 432

In re J.C.D., J.D.D., J.A.M., E.O.M., T.D.M., & Q.O.M.

No. E2007-01266-COA-R3-PT.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

Assigned on Briefs October 15, 2007.

November 30, 2007.

Permission to Appeal Denied by Supreme Court February 21, 2008.

Ben H. Houston II, Knoxville, Tennessee, for the appellant, J.D.M.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

OPINION

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.

Upon petition of DCS, the juvenile court terminated Mother's parental rights to her six children upon a determination that Mother had failed to substantially comply with requirements of her permanency plans, that conditions that led to the children's removal from the home still persisted and that termination was in the best interest of the children. On appeal, Mother argues that there was not clear and convincing evidence of statutory grounds for termination or that termination was in the children's best interest. Mother also argues that DCS did not make reasonable efforts to reunite Mother and the children, that the juvenile court erred in finding statutory grounds for terminating the Mother's parental rights to T.D.M. and Q.O.M., who were opposed to termination, before appointing a preference guardian to represent them, and that termination of parental rights to Q.O.M. was prohibited absent his consent because he was over fourteen years of age at the time of termination. We hold that the evidence does not preponderate against the juvenile court's finding that there was clear and convincing evidence of at least one statutory ground for termination of Mother's parental rights, that termination of Mother's parental rights was in the children's best interest, and that DCS made reasonable efforts to reunite Mother and the children. We further hold that the juvenile court was not required to appoint a preference guardian ad litem before trying the issue of whether there were statutory grounds for the termination of parental rights as to T.D.M. and Q.O.M. despite their opposition to termination and that the consent of Q.O.M. was not a prerequisite to termination of Mother's parental rights despite the fact that he was over fourteen years of age. Accordingly, we affirm the judgment of the juvenile court.

I. Background

In this appeal, we address the termination of parental rights of J.D.M. ["Mother"]¹ to her six children — J.C.D. (DOB: August 23, 2004); J.D.D. (DOB: August 23, 2004); J.A.M. (DOB: June 6, 2002); E.O.M. (DOB: May 14, 2000); T.D.M. (DOB: January 4, 1994); and Q.O.M. (DOB: December 4, 1990). In November of 2004, the Department of Children's Services ("DCS") filed a petition for temporary custody of the children. By order of the Knox County Juvenile Court entered November 22, 2004, custody of all six children was placed with DCS upon a finding that the children were dependent and neglected, based upon sworn allegations set forth in DCS's petition that Mother left the children unattended for a period in excess of seven hours, and may have left the children unattended overnight and that Mother "had services in and out of the home since about 2000, to address drug dependency issues for cocaine, and lack of supervision." Thereafter, the twin children, J.C.D. and J.D.D., were placed in the foster care of one family, and the other children, J.A.M., E.O.M., T.D.M., and Q.O.M., were placed in the foster care of a different family.

On December 9, 2004, DCS drafted permanency plans with regard to each child with the stated goal of reuniting Mother and the children. On June 1, 2005, the juvenile court entered its final order finding the six children to be dependent and neglected due to Mother's substance abuse and because she left the children without appropriate supervision.

The permanency plans were revised on September 9, 2005, by changing the plans' goal from reunification solely to "reunify with parent/adoption." The permanency plans were again modified on July 17, 2006, at which time the plans' goal was changed to "adoption" alone because the children had been in custody since November 22, 2004, without reaching permanency. At that time, the plans were further modified to include the requirement that Mother attend and complete a high-risk parenting group to address medical/behavioral needs of the two youngest children, J.D.D. and J.C.D., both of whom were born cocaine positive as a result of Mother's drug use during her pregnancy.

Approximately one month after staffing the third version of the permanency plans, DCS filed a petition to terminate Mother's parental rights to her six children upon grounds, inter alia, that Mother failed to substantially comply with responsibilities set forth in her permanency plans and failed to remedy conditions that had led to the children's removal from her home. At trial on May 30, 2007, the guardian ad litem presented letters from the two oldest children, T.D.M. and Q.O.M., indicating their opposition to Mother's parental rights being terminated and on this basis, requested a continuance pending the juvenile court's appointment of a preference guardian ad litem pursuant to Tenn. Sup. Ct. R. 40(e). Upon agreement of all the parties, the trial proceeded as to whether there were statutory grounds for termination of Mother's parental rights as to all of the children. The issue of whether termination would be in the best interest of J.C.D., J.D.D., J.A.M., and Q.O.M. was also tried; however, as to T.D.M. and Q.O.M., the best interest inquiry was continued to a later date, pending appointment of a preference guardian ad litem.

At the conclusion of trial, the juvenile court determined that DCS had presented clear and convincing evidence of statutory grounds for the termination of Mother's parental rights as to all six children. Specifically, the court found sufficient proof to show 1) Mother failed to substantially comply with the requirements of the permanency plans by failing "to successfully complete substance abuse treatment and establish a drug-free lifestyle" and 2) that the children had been removed from the home for six months and that the conditions which led to their removal persisted or other conditions persisted which in all probability would cause the children to be subjected to further abuse and neglect and that there was little likelihood that these conditions would be remedied at an early date. The juvenile court further found that termination of Mother's parental rights was in the best interest of J.C.D., J.D.D., J.A.M., and E.O.M. and accordingly, ordered that Mother's parental rights be terminated as to those four children. A preference guardian ad litem was appointed for T.D.M. and Q.O.M., and after a further hearing on June 12, 2007, the juvenile court determined that termination of Mother's parental rights was in their best interest also and therefore, entered its order terminating Mother's parental rights as to those two children as well. Mother now appeals.

II. Issues Presented

Mother presents several issues for our review which are restated as follows:

1) Whether there was clear and convincing evidence of statutory grounds for termination of Mother's parental rights.

2) Whether the juvenile court erred in trying the case with regard to the existence of statutory grounds for termination of Mother's parental rights as to T.D.M. and Q.O.M. before appointing a preference guardian ad litem on their behalf.

3) Whether DCS made reasonable efforts to reunite Mother with her children.

4) Whether there was clear and convincing evidence that termination was in the children's best interest.

5) Whether the juvenile court was required to obtain Q.O.M.'s consent to terminate Mother's parental rights as to him because he was over fourteen years of age.

III. Analysis

A. Standard of Review

A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn.1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn.Ct.App. 2001). Although this right is fundamental and superior to claims of other persons and the government, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct.App.2004). This right continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.2002). Although "parents have a fundamental right to the care, custody, and control of their children," this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute. In re Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App.1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)).

Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger, "severing forever all legal rights and obligations of the parent." Tenn.Code Ann. § 36-1-113(l)(1). The United States Supreme Court has recognized the unique nature of proceedings to terminate parental rights, stating that "[f]ew consequences of judicial action are so grave as the severance of natural family ties." M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S.Ct. 1388, 1412, 71 L.Ed.2d 599 (1982) (Rehnquist, J., dissenting)). As a result, "[t]he interest of parents in their relationship with their children is sufficiently fundamental to...