State Dept. of Human Services v. Defriece

• Court: Tennessee Court of Appeals
• Writing for the Court: SUSANO; FRANKS; GODDARD
• Citation: State Dept. of Human Services v. Defriece, 937 S.W.2d 954 (Tenn. App. 1996)
• Decision Date: 04 October 1996
• Parties: STATE of Tennessee DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, and William D. Gardner and Joann Gardner, Intervening Petitioners-Appellees, v. Dana D. DEFRIECE, Respondent-Appellant. In the Matter of John DEFRIECE, a minor.

Page 954

937 S.W.2d 954

STATE of Tennessee DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee and William D. Gardner and Joann Gardner, Intervening Petitioners-Appellees, v. Dana D. DEFRIECE, Respondent-Appellant In the Matter of John DEFRIECE, a minor.

Court of Appeals of Tennessee Eastern Section.

Oct. 4, 1996.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 3, 1997.

Debra L. House, Southeast Tennessee Legal Services, Cleveland, for Appellant.

Randy G. Rogers, Athens, for Appellees Gardners. ¹

OPINION

SUSANO, Judge.

The trial court terminated the parental rights of Dana D. Defriece (Mother) to her son, John Defriece (John) (DOB: January 9 1988). ² Mother appeals, raising three issues that present the following questions:

1. Is the proper appeal route in this case directly to the Court of Appeals or rather to circuit court for a de novo hearing?

2. Do the allegations of the intervening petition satisfy the requirements of T.C.A. § 37-1-147(a) (1991)?

3. Is the trial court's termination of Mother's parental rights supported by clear and convincing evidence?

I

The trial court initially placed Mother's four minor children, including John ³, in the protective custody of the Department of Human Services (DHS). The foster care plan in the record indicates that the reasons for the placement were Mother's abuse of alcohol and drugs; her failure to provide a stable home for the children; and her movement with the children into and out of a boy friend's residence all within one week. The plan also notes that DHS had made "all reasonable efforts to prevent this removal," that Mother had been offered counseling and day care, and that she had moved out of housing provided by a local church. After a hearing on DHS's petition, the trial court found the children dependent and neglected and awarded their custody to DHS. The court ordered that Mother seek job training, placement through Vocational Rehabilitation, obtain her GED, and fully comply with the foster care plan.

John has resided primarily with the intervening petitioners, William and Joann Gardner (Gardners), since he was ten months old. After the children were placed in the temporary custody of DHS, the Gardners filed their intervening petition (Petition) asking the court to grant them custody of John and his sister, Katie, and seeking the termination of the parents' rights with respect to those children. In response to the Petition, the Guardian ad Litem expressed the opinion that it was in the children's best interest to remain with the Gardners.

The trial court held three separate hearings on the Petition. Following the first hearing, the court awarded full legal custody of John and Katie to the Gardners, finding that Mother had "failed to show any substantial improvement in her circumstances," and that the Gardners were fit persons to have the children's custody. The court continued the matter until a later date, and provided that its order would become final if Mother did not make significant progress. After the second hearing, the court ordered that John and Katie remain in the custody of the Gardners, and set the matter for further review at a later time. Following the third hearing, the trial court found

that the subject child, John Defriece, has been in the custody of the Tennessee Department of Human Services in excess of one year; that the conditions which led to said child's removal still persist, that there is little likelihood that said conditions will be remedied at an early date so that the child can be returned to either parent in the near future, that the continuation of the legal parent and child relationship greatly diminishes the child's chances of early integration into a stable and permanent home; that the lack of stability of the natural mother ... has been monumental; that the natural mother continues to lack the ability to provide for the subject children....

The court thus found that it was in John's best interest for Mother's parental rights to be terminated and for John to be placed in the full custody of the Gardners. The court subsequently entered an order to that effect.

II

Our review is de novo upon the record with a presumption of correctness as to the trial court's findings, unless the preponderance of the evidence is otherwise. Rule 13(d), T.R.A.P.; Tennessee Dept. of Human Services v. Riley, 689 S.W.2d 164, 170 (Tenn.App.1984).

The criteria upon which the trial court terminated Mother's parental rights are set forth in T.C.A. § 37-1-147(d)(1) (1991):

After hearing evidence on a termination petition, the court may terminate parental rights if it finds on the basis of clear and convincing evidence that termination is in the child's best interest and that one (1) or more of the following conditions exist:

(1) The child has been removed from the custody of the parent by the court for at least one (1) year and the court finds that:

(A) The conditions which led to the removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child's return to the care of the parent(s) still persists;

(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be returned to the parent in the near future; and

(C) The continuation of the legal parent and child relationship greatly diminishes the child's chances of early integration into a stable and permanent home[.]

Prior to April 15, 1994, T.C.A. § 37-1-159(a) (1991) provided that a party appealing a juvenile court's decision in a termination of parental rights case was entitled to a trial de novo in circuit court; however, this procedure was changed by the enactment of Chapter 810 of the Public Acts of 1994, effective April 15, 1994. The amended version of T.C.A. § 37-1-159 (Supp.1995) eliminated the de novo trial in circuit court and provided instead for an appeal as of right directly to this court. T.C.A. § 37-1-159(a) and (g) (Supp.1995); In re S.M., Jr., C/A No. 01A01-9506-JV-00233, 1996 WL 140410 (Tenn.App., M.S., filed March 29, 1996, Koch, J.).

III

We turn first to Mother's contention that she is entitled to a trial de novo in circuit court due to the fact that the amendment to T.C.A. § 37-1-159 (1991) became effective after the commencement of these proceedings. The Gardners' Petition was filed on February 11, 1993. The first hearing on the matter was started on August 24, 1993, and completed on September 29, 1993. The amended version of T.C.A. § 37-1-159 (Supp.1995) became effective on April 15, 1994. The second hearing was held five days later, on April 20, 1994. The third hearing, after which Mother's parental rights were terminated, was held on August 25 and 26, 1994. As can be seen, the change in appellate procedure took effect in the middle of this litigation.

Mother argues that application of the amended statute to this appeal causes her unfair prejudice. She argues in her brief that she had the right to expect a trial de novo in circuit court and that, because of this expectation, she did not take steps to preserve the record for appeal by employing a court reporter to transcribe the evidence presented in the Bradley County Juvenile Court. Mother argues that the second and third hearings were simply continuations of the first hearing, which was held prior to the amendment's effective date. She asserts that she was denied "another opportunity to fully present her case" in circuit court, and that this case should therefore be remanded to circuit court for a trial de novo so that she may "properly present her case and preserve all testimony for purposes of an appeal, should such be necessary."

We must first determine whether the 1994 amendment to T.C.A. § 37-1-159 (1991) is within the class of enactments that may be applied retroactively to pending cases. The general rule is that statutes are presumed to operate prospectively. Kee v. Shelter Insurance, 852 S.W.2d 226, 228 (Tenn.1993). Nevertheless, as stated by the Supreme Court,

[a]n exception exists ... for statutes which are remedial or procedural in nature. Such statutes apply retrospectively, not only to causes of action arising before such acts become law, but also to all suits pending when the legislation takes effect, unless the legislature indicates a contrary intention or immediate application would produce an unjust result.

Id. (citing Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn.1976)). Thus, the question arises whether the statute at issue here is remedial or procedural--as opposed to substantive--in nature. In Saylors, the Supreme Court adopted the following description of "procedure" from a Kansas case:

[T]he mode or proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding, the court is to administer--the machinery, as distinguished from its product; ... including pleading, process, evidence, and practice.... Practice [is] the form ... for the enforcement of rights or the redress of wrongs, as distinguished from the substantive law which gives the right or denounces the wrong.

544 S.W.2d at 610 (quoting Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963)) (emphasis in Saylors opinion). In addition, remedial statutes are defined as

[l]egislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained ...

Black's Law Dictionary 1293 (6th ed. 1990). See also Morford v. Yong Kyun Cho, 732 S.W.2d 617 (Tenn.App.1987).

A legislative enactment changing the jurisdiction of a court is remedial in nature. Id. at 620. As noted in Morford, the United States Supreme Court has upheld the constitutionality of retroactively applying a purely remedial act which increases the jurisdiction of a court. Id. at 621 (citing United States v. Union Pac. R.R., 98 U.S. (8 Otto) 569, 607-608, 25 L.Ed. 143 (1...