In re: the Adoption of Female Child

• Decision Date: 29 September 1999
• Docket Number: 98-00316
• Citation: 42 S.W.3d 26
• Parties: IN RE: THE ADOPTION OF FEMALE CHILD, E.N.R. AMY JENELL REED and JONATHAN LAMAR REED, Petitioners/Appellees, v. TIMOTHY RAY ROSE, Respondent/Appellant .AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed
• Court: Tennessee Court of Appeals

IN RE: THE ADOPTION OF FEMALE CHILD, E.N.R.

AMY JENELL REED and JONATHAN LAMAR REED, Petitioners/Appellees v TIMOTHY RAY ROSE, Respondent/Appellant

.Appeal No. 01A01-9806-CH-00316

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed September 29, 1999

APPEAL FROM THE CHANCERY COURT FOR LAWRENCE COUNT

Lawrence Chancery No. 8663-97

THE HONORABLE ROBERT L. JONES PRESIDING

Appellant Timothy Ray Rose, an inmate of the Tennessee Department of Correction, seeks reversal of the trial court's decision to terminate his parental rights regarding E.N.R., his daughter by Amy Jenell Reed. Mr. Rose asserts that Tenn. Code Ann. 36-1-113 (g) (6) (Supp. 1998) violates the Due Process Clause of the Fourteenth Amendment. He also maintains that termination of his parental rights was not in E.N.R.'s best interest. For the following reasons, we affirm and remand.

ANDREA HUDDLESTON, HILLHOUSE & HUDDLESTON, P.O. BOX 787, LAWRENCEBURG, TENNESSEE 38464

ATTORNEY FOR PETITIONERS/APPELLEES

J. JAY CHEATWOOD , P.O. BOX 794 , LAWRENCEBURG, TENNESSEE 38464

ATTORNEY FOR RESPONDENT/APPELLANT

AFFIRMED AND REMANDED

PATRICIA J. COTTRELL, JUDGE

CONCURS:

CANTRELL, P. J.

DISSENTS IN SEPARATE OPINION:

KOCH, J.

OPINION

E.N.R.'s parents began dating in January of 1993. She was born on December 21, 1993. Her parents never married. Mr. Rose attended the birth, and, in the ensuing weeks, visited the new-born and her mother frequently. Although he did not pay for pre-natal care, he gave Mrs. Reed $500 or $600 of his income tax refund after the birth.

When E.N.R. was seven weeks old, Mr. Rose pleaded guilty to a lesser included offense of rape and was incarcerated on February 8, 1994, under a twelve-year sentence. He was originally charged with aggravated rape of a five-year-old child. Mrs. Reed testified that she did not learn about the charges until May of 1993, after she got pregnant. She stated that Mr. Rose claimed to be innocent and she believed him. Mr. Rose maintained that he told Mrs. Reed of the charges shortly after they began dating.

For the first year after Mr. Rose was incarcerated, Mrs. Reed regularly took E.N.R. to visit her father at the penitentiary. Mrs. Reed's interest in maintaining the relationship waned after she learned that Mr. Rose had confessed to the crime with which he was originally charged. During his incarceration, Mr. Rose sent E.N.R. $177.09 in child support. Mrs. Reed returned most of this money at Mr. Rose's request, for his use while incarcerated. Mrs. Reed last visited the prison in October 1996.

The Reeds married in the summer of 1997. On August 28, 1997, they filed the underlying petition. On the same day, Mr. Rose filed a petition to legitimate E.N.R. The Reeds successfully moved to consolidate Mr. Rose's legitimation petition with this action. On November 18, 1997, the Reeds moved for summary judgment. Mr. Rose filed a pro se response, a motion seeking appointed counsel and a motion requesting an order to allow his personal appearance at all hearings. The trial court granted Mr. Rose's motions, appointed counsel, and issued an order legitimating E.N.R. See Tenn. Code Ann. 36-1-117 (b)(2) and (3) (Supp. 1998). After a hearing, the court denied the Reeds' motion for summary judgment.

The case came on for trial and, after hearing the evidence, the trial court terminated Mr. Rose's parental rights and granted the Reeds' petition for adoption of E.N.R. by Mr. Reed.¹ The trial court found that Mr. Rose pleaded guilty to rape and received a 12-year sentence when E.N.R. was under eight (8) years of age, and, therefore, the Reeds had met their burden of proving, by clear and convincing evidence, the existence of statutory grounds for termination on the basis of Tenn. Code Ann. 36-1-113 (g) (6). The court further concluded that the Reeds had proved that termination of Mr. Rose's parental rights and E.N.R's adoption by Mr. Reed were in the best interest of the child. The trial court also upheld the constitutionality of Tenn. Code Ann. 36-1-113 (g) (6), relying on Worley v. State Department of Children's Services, No. 03A01-9708-JV-00366, 1998 WL 52098 (Tenn. App. Feb. 10, 1998) (no Tenn. R. App. P. 11 application filed).

I.

To terminate a parent's rights to his or her child, the trial court first must find that one of the statutory grounds for termination has been established by clear and convincing evidence. Tenn. Code Ann. 36_1_113(c)(1) (Supp. 1998). Once this finding is made, the court must determine whether it has also been shown by clear and convincing evidence² that termination of the parent's rights is in the child's best interests. Tenn. Code Ann. 36_1_113(c)(2) (Supp. 1998).

The grounds for the termination of Mr. Rose's parental rights were those found in Tenn. Code Ann. 36-1-113(g)(6) (Supp. 1998). That subsection states in pertinent part:

Initiation of termination of parental or guardianship rights may be based upon any of the following grounds: . . .

(6) The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.

On appeal, Mr. Rose does not dispute the trial court's finding that the requirements set out in section 113(g)(6) were proved. He does, however, argue that termination of his parental rights is not in the best interest of E.N.R. He maintains that E.N.R. should not be deprived of his support and affection.

As stated in the statute, an action to terminate parental rights can be initiated only if one of the statutorily-defined grounds is shown to exist. Our legislature has chosen to define those grounds by using objective criteria, leaving little room for consideration of other factors, such as intent or wilfulness in determining whether the grounds exist. See Adoption of Dunaway, 1999 WL552873 (Tenn. App. July 29, 1999).

However, the finding that grounds for termination exist only triggers the second analysis - whether termination of this parent's parental rights is in this child's best interest. It is in this critical phase of the analysis that the court can and should consider the particular circumstances before it, including the impact on the child of the termination of a previously established and maintained relationship, where such has existed, or the impact on a young child of the absence of a parent for a foreseeably large portion of that child's early years. It is in the best interest analysis phase of the termination determination that the court must engage in individualized consideration of the situation before it and make that often-difficult decision as to the child's best interest.

In making this best_interest determination, the trial court is required to consider, but is not limited to, the following factors:

(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it in the child's best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward other children in the family or household;

(7) Whether the physical environment of the parent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child;

(8) Whether the parent's or guardian's mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to 36_5_101.

Tenn. Code Ann. 36_1_113(i) (Supp. 1998). Our review of the trial court's decision is de novo upon the record with a presumption of correctness of the trial court's findings of fact, unless a preponderance of the evidence dictates otherwise. See Tenn. R. App. P. 13(d). The trial court herein, however, applied the generally applicable preponderance of the evidence standard to the best interest analysis. Our task, then, is to determine whether the record shows by clear and convincing evidence that termination of Mr. Rose's parental rights is in E.N.R.'s best interest.

The record shows that Mr. Rose was charged with the aggravated rape of a five year old child, the daughter of his cousin's girlfriend. He confessed and entered a plea to the lesser included offense of rape. Mr. Rose was denied parole in 1996 based on the seriousness of the offense. He has obtained no psychiatric treatment during his incarceration. E.N.R. was conceived while the charges were pending against Mr. Rose, raising questions regarding Mr. Rose's forethought as to and interest in maintaining a presence in E.N.R.'s life. Further, prior to the court granting his petition to legitimate E.N.R. and setting of child support, Mr. Rose provided minimal child support, and actually requested the return of funds he sent to Mrs. Reed. He sent no birthday or Christmas gifts or greetings. Mr. Rose's family has not maintained ties with E.N.R. through...