The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 30, 2011
IN RE: THE ADOPTION OF GABRIELLE N. N.
Appeal from the Chancery Court for Hamilton County
No. 09-A-057 W. Frank Brown, III, Chancellor
No. E2010-01539-COA-R3-PT - Filed April 11, 2011
Jeanenne W. M. (“Petitioner”) filed a petition seeking to adopt the minor child, Gabrielle
N.N. (“the Child”) and to terminate the parental rights of Russell A.N. (“Father”) to the
Child. After a trial, the Trial Court entered its order on June 14, 2010 finding and holding,
inter alia, that clear and convincing evidence existed to support a termination of Father’s
parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(3) and (g)(5), and that clear and
convincing evidence existed that it was in the Child’s best interest for Father’s parental rights
to be terminated. Father appeals to this Court. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Robert B. Pyle, Chattanooga, Tennessee, for the appellant, Russell A. N.
Mitchell L. Meeks, Chattanooga, Tennessee, for the appellee, Jeanenne W. M.
OPINION
Background
The Child’s biological mother died in April of 2003. In November of 2009,
Petitioner, the maternal grandmother of the Child, filed a petition seeking to terminate
Father’s parental rights to the Child and to adopt the Child. The case was tried without a jury
in June of 2010.
On June 14, 2010 the Trial Court entered its very detailed Memorandum
Opinion and Order finding and holding, inter alia:
Based upon the evidence presented at the hearing on June 4, 2010, and
the two Orders in the court file, the court makes the following findings of fact
based upon clear and convincing evidence.
1. [the Child] was born on January 29, 2002;
2. [Cayla I. N.], born May 2, 1994, is [the Child’s] sister;
3. [Father] is the biological father of Cayla and [the Child];
4. [Tasha E. N.] was the biological mother of Cayla and [the Child];
[Tasha E. N.] died on April 14, 2003;
5. [Father] was convicted, by jury trial, of sexual battery on [Cayla], his
daughter, pursuant to Tenn. Code Ann. § 39-13-505, which provides as
follows:
Sexual battery. – (a) Sexual battery is unlawful sexual
contact with a victim by the defendant or the defendant by a
victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the
consent of the victim and the defendant knows or has reason to
know at the time of the contact that the victim did not consent;
(3) The defendant knows or has reason to know that the
victim is mentally defective, mentally incapacitated or
physically helpless; or
(4) The sexual contact is accomplished by fraud.
(b) As used in this section, “coercion” means the threat
of kidnapping, extortion, force or violence to be performed
immediately or in the future.
(c) Sexual battery is a Class E felony.
6. [Father’s] judgment was entered on September 2, 2009, he was
sentenced to two years with the Tennessee Department of Corrections, and he
is in prison serving that sentence;
7. Part of the sentence provided that [Father] had to register with the
sex offender registry and there was a “permanent restraining order from
victim”;
8. An Order was entered on August 26, 2008, in case numbers … and
… in the Juvenile Court for Sevier County, Tennessee as a result of a hearing
held on August 8, 2008, and the following are determined from that Order;
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9. Both cases were filed by the Tennessee Department of Human
Services;
10. [Petitioner, Cayla, and the Child], attended the hearing along with
the guardian ad litem, counsel for [Petitioner], and three employees of the
Tennessee Department of Children’s Services;
11. [Father] and [Taffy W.], Cayla’s paternal aunt, were not present
even though [Father] had service;
12. Juvenile Court Judge Jeff D. Rader found that [Father] had (a)
contact with his two daughters, in violation of the court’s specific orders, and
such contact was facilitated by [Taffy W.]; and (b) sent threatening text
messages and voice mails to Cayla, the alleged victim in the criminal charge
of sexual battery filed against [Father];
13. Judge Rader also made the following findings and order:
***
3. That the allegations of inappropriate sexual contact
between the father and his daughter were what brought this
matter into this court resulting in the children originally being
placed into the Department of Children’s Services custody;
4. That the children were released jointly into a shared
custody arrangement between the paternal aunt and the maternal
grandmother only because the children themselves desired at
that time to continue to go to school in Sevier County and
maintain contact with their friends;
5. That the Department of Children’s Services has
recently performed background checks and a home study on the
maternal grandmother and continue[s] to find her to be a
responsible and acceptable placement for the children, and given
the new circumstances completely agree[s] that the children
should be in the sole custody of [Petitioner];
6. That since the threatening contact from the father, the
children no longer feel safe and protected in the paternal aunt’s
care and do not wish or desire to return to Sevier County and
have expressed the sincere desire through the Guardian ad Litem
to remain in the sole custody of the maternal grandmother who
currently resides in Hamilton County.
7. That independent of the father’s situation, there are
several matters of inappropriate activity that have taken place
while the child[ren] have been in the paternal aunt’s care,
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specifically it has been reported that the aunt no longer has
custody of her own children and that she has brought a paramour
on an overnight visit with the children in a motel room.[;]
8. That the maternal grandmother has been and continues
to provide for the children’s care and well-being and is able and
willing to do so on a permanent basis;
9. That it has been clearly established that the children’s
best interests are to be in the sole legal and physical custody of
their maternal grandmother, who shall continue to exercise sole
authority to consent to the medical, dental, psychological, and
educational needs of the children;
***
11. That the father shall continue to be prohibited from
any contact whatsoever with the above named minor children,
to include using third parties to contact the children on his
behalf, whether contact be in person, or via telephone, mail, text
message, email or any other medium;
12. That all no contact orders shall remain in full force
and effect until such time as modified by further hearing of this
court, after appropriate pleadings have been filed to include
notice to the Department of Children’s Services and [Petitioner]
as the sole custodian of the children.
13. That the Guardian ad Litem shall continue to monitor
this situation for 90 days from the date of this order and file
additional pleadings if necessary and at the conclusion of that
time[-]frame, may close his case accordingly and be released
from further responsibilities, subject to being re-appointed
should future appropriate pleadings be filed.
14. The Juvenile Court Order was filed as Exhibit “A” to the Petition
for Adoption;
15. [Petitioner] is the maternal grandmother of [the Child];
16. [Petitioner] is a resident of Hamilton County, Tennessee;
17. [The Child] and her older sister, Cayla, have resided continuously
with [Petitioner] in Hamilton County, Tennessee since August 8, 2008, when
[Petitioner] was granted exclusive custody of both granddaughters;
18. [Petitioner] has a very close relationship with [the Child] and the
relationship is more like a mother-daughter relationship than a grandmother-
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granddaughter relationship;
19. [Petitioner] wants to adopt [the Child] and her sister, Cayla;
20. [The Child] will begin the third grade when school begins in August
of 2010 and she is an excellent student;
21. [The Child] is involved in most school activities and she especially
enjoys plays;
22. There is a swimming pool in the neighborhood and the girls have
a dog named Dakota;
23. [Petitioner] had received no monetary support at all from [Father]
and he has not sent any gifts, cards, or letters to Cayla or [the Child];
24. [Petitioner] testified that there was no appeal of the Juvenile Court
Order filed August 26, 2008;
25. [Petitioner] said that [Father] did not appeal his conviction of the
sexual battery of Cayla;
26. The adoption of Cayla and [the Child] by [Petitioner] should relieve
some of the prior feelings and actions of Cayla’s acting in a mother-type role
as to her younger sister and [the Child] looking to her older sister, which
should allow both sisters to be “girls” and not have any other roles; and
27. [Father] did not testify that he loved his children nor objected to the
termination of his parental rights during the hearing on June 4, 2010.
***
(c) [Petitioner] also alleged Tenn. Code Ann. § 36-1-113(g)(3) (Supp.
2009) as a ground for termination of [Father’s] parental rights; this statute
provides as follows:
(3) The child has been removed from the home of the
parent or guardian by order of a court for a period of six (6)
months and:
(A) The conditions that led to the child’s removal
or other conditions that in all reasonable probability would cause
the child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions
will be remedied at an early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and
child relationship greatly diminishes the child’s chances of early
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integration into a safe, stable and permanent home;
There is no doubt that [the Child] has been removed from the home of
[Father] for over six months. Indeed, she had been removed from [Father’s]
home prior to the Juvenile Court hearing on August 8, 2008. The General
Assembly has found that “[S]exual offenders pose a high risk of engaging in
further offenses after release from incarceration or commitment….” No doubt
this legislative finding is the basis for Tenn. Code Ann. § 40-39-211(c)(2)
(Supp. 2009) quoted above, which prohibits [the Child] from living with
[Father] after his release because Cayla, a minor, was the victim of the sexual
offense. There is no doubt that the retention of [Father’s] parental rights is the
only barrier to [the Child’s] adoption by [Petitioner]. The court finds that this
ground has been proved and is sufficient for the termination of [Father’s]
parental rights.
(d) [Petitioner] has also alleged that [Father’s] parental rights should
be terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(5) (Supp. 2009),
which provides:
(5) The parent or guardian has been sentenced to
more than two (2) years’ imprisonment for conduct against the
child who is the subject of the petition, or for conduct against
any sibling or half-sibling of the child or any other child residing
temporarily or permanently in the home of such parent or
guardian, that has been found under any prior order of a court or
that is found by the court hearing the petition to be severe child
abuse, as defined in § 37-1-102(b). Unless otherwise stated, for
purposes of this subdivision (g)(5), “sentenced” shall not be
construed to mean that the parent or guardian must have actually
served more than two (2) years in confinement, but shall only be
construed to mean that the court had imposed a sentence of two
(2) or more years upon the parent or guardian;
This ground is the only ground that [Father’s] attorney would concede, based
upon the certified copy of the judgment and [Father’s] testimony.
The court finds that [Father’s] conviction on September 2, 2009 fits this
specific statute. [Father] was sentenced to two years imprisonment. His
conduct was against Cayla, the child who is the subject of this petition[, the
Child] is the sibling of Cayla, the victim. This subsection of the statute
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provides an independent basis for the termination of a parent’s rights. See
Nash-Putnam v. McCloud, 921 S.W.2d 170, 176 (Tenn. 1996) and State v.
Galvin, No. 03A01-9807-CV-00233, 1999 Tenn. App. LEXIS 257 AT *16
(April 16, 1999). [Father’s] parental rights should be terminated on the basis
of this statute.
(e) The Court finds, by clearing [sic] and convincing evidence, that
[Father’s] parental rights could be terminated on the basis of either Tenn. Code
Ann. § 36-1-113(g)(3) or (g)(5) (Supp. 2009).
B. Best Interests of the Child.
1. Once the grounds for termination are found by clear and convincing
evidence, then the court must determine if the termination of the parent’s rights
is in the child’s best interests. Tennessee Code Annotated § 36-1-113(c)
(Supp. 2009);
2. In determining adoption/termination issues, the General Assembly
has instructed courts to apply the following construction:
(d) In all cases, when the best interests of the child and
those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child ….
Tennessee Code Annotated § 36-1-101(d);
3. In making this determination of the child’s best interests,
[T]he child’s best interests must be viewed from the
child’s, rather than the parent’s, perspective.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004[)].
4. The General Assembly has identified nine specific factors that a
court should consider in determining whether it is in a child’s best interest to
terminate a parent’s rights. Those factors, by number the same as the
subsection in Tenn. Code Ann. § 36-1-113(i), and the court’s finding[s] are set
forth below:
(1) There is no evidence that [Father] “has made such an adjustment of
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circumstances, conduct or conditions as to make it safe and in the child’s best
interest to be in the home of the parent.” Tennessee Code Annotated § 36-1-
113(i)(1) (Supp. 2009). [Father] was convicted, after a jury trial, of sexual
battery on his own daughter, Cayla, the older sibling of [the Child]. [Father]
must register with the sexual offender registry. The Juvenile Court order
prohibited contact between [Father] and [the Child]. There will be no future
relationship, whether the parental termination occurs or not. Termination will
allow the adoption; the failure to terminate [Father’s] parental rights will
prevent the adoption and leave [the Child] without, in effect, a parent;
(2) The second ground has the same issue and result as does the first
listed ground; there is no evidence that [Father] has made any adjustment;
(3) [Father] has not maintained regular visitation or contact with [the
Child]; and he could not do so as a result of the Juvenile Court Order;
(4) The court finds that the meaningful relationship between [Father]
and [the Child], if such existed, has been destroyed by [Father’s] sexual battery
of and threats against Cayla;
(5) The change in caretakers, after 22 months in [Petitioner’s] extensive
[sic] custody, would likely be detrimental to [the Child’s] emotional and
psychological condition, especially when there is no chance of reestablishing
the father-daughter relationship, and there was no evidence that there is any
viable alternative to [Petitioner’s] adoption of [the Child];
(6) The sixth factor is the bright light in this case as [Father] has been
convicted of sexual battery of Cayla, [the Child’s] older sibling;
(7) There was criminal activity in [Father’s] home, i.e., his sexual
battery of Cayla, and that activity is why Cayla and [the Child] were removed
from [Father’s] home and custody;
(8) As stated above, [Father] will not be able to provide safe and stable
care for [the Child] and there must be some mental and/or emotional issue with
[Father] that would cause him to commit sexual battery on his own daughter,
Cayla; and
(9) There was no evidence that [Father] ever paid any child support.
[Petitioner] certainly never received any support from [Father] for [the Child];
Counsel for [Father] argued that it has not been proved to be in [the
Child’s] best interest to terminate [Father’s] parental rights. He argued that
[Petitioner] had not proved where she lived, what type dwelling she occupied,
the children’s sleeping arrangements, etc. The General Assembly did not list
those issues as factors to consider in making the best interest determination.
The court, therefore, rejects [Father’s] arguments and contentions that the
termination of his parental rights has not been proved by clear and convincing
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evidence.… This case has a history in the Juvenile Court of Sevier County.
It appears that the line of attack is not against the issues related to “best
interests” but the adoption itself: can [Petitioner] adequately provide and care
[for the Child]? Those type issues are covered in the Petition for Adoption.
Here, [Petitioner] has filed a verified Petition for Adoption and covered those
points. The Answers to [Father’s] issues are also found in the Juvenile Court
Order of August 26, 2008. [Petitioner] was not questioned about those issues.
Most important, Ms. Stephens, as guardian ad litem, did not raise any issues
or concerns and expressed her opinion that the termination should occur in
order that the adoption could follow. [The Child] needs a safe, secure, loving
home. She needs permanency and security. [Petitioner] can provide these
needs. [Father] cannot provide these needs. The court finds by clear and
convincing evidence that it is in [the Child’s] best interest that [Father’s]
parental rights be terminated.
Father appeals to this Court.
Discussion
Although not stated exactly as such, Father raises one issue on appeal: whether
the Trial Court erred in finding that clear and convincing evidence existed that the
termination of Father’s parental rights was in the Child’s best interests.1
Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:
This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption
of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
parental rights, a trial court must determine by clear and
convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in
the child's best interest. In re Valentine, 79 S.W.3d 539, 546
1
Father does not appeal the Trial Court’s findings that grounds were proven by clear and convincing
evidence to terminate his parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(3) and (g)(5), and the
evidence in the record on appeal does not preponderate against the Trial Court’s findings relative to this
issue.
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(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
reviewing a termination of parental rights, this Court's duty,
then, is to determine whether the trial court's findings, made
under a clear and convincing standard, are supported by a
preponderance of the evidence.
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).
In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:
It is well established that “parents have a fundamental right to
the care, custody, and control of their children.” 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)).
“However, 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.” Id. (citing
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982)).
Termination of parental or guardianship rights must be
based upon a finding by the court that: (1) the grounds for
termination of parental or guardianship rights have been
established by clear and convincing evidence; and (2)
termination of the parent’s or guardian’s rights is in the best
interests of the child. Tenn. Code Ann. § 36-1-113(c). Before
a parent’s rights can be terminated, it must be shown that the
parent is unfit or substantial harm to the child will result if
parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire
as to whether termination of parental rights is in the best
interests of the child, the court must first determine that the
grounds for termination have been established by clear and
convincing evidence. Tenn. Code Ann. § 36-1-113(c).
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
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In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
As pertinent to this appeal, Tenn. Code Ann. § 36-1-113(i) provides:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child pursuant to this part, the court shall consider, but
is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and 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 the child, or another child or adult 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 in a safe and stable
manner;
(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 safe and stable 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) (2010).
We begin our analysis by noting that the record on appeal contains no
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transcript, but does contain a Statement of the Evidence. This Court has stated that “a
parental rights termination case where a Statement of the Evidence would be sufficient would
be extremely rare and the best way to proceed is by providing this Court with a complete
transcript of all evidence.” L.D.N. v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 Tenn.
App. LEXIS 103, at **13-14 (Tenn. Ct. App. Feb. 17, 2006), no appl. perm. appeal filed.
The case now before us on appeal is one of those very rare cases in which a Statement of the
Evidence is sufficient to allow this Court to conduct a thorough review.
In his brief on appeal, Father asserts that the Trial Court erred because “no
facts were presented showing what conditions were in the proposed adoptive home or that
the petitioner was financially able to provide for the child causing the Court to speculate
about best interests.” Father further asserts:
In order for the Court to grant the adoption T.C.A. 36-1-120(10) [sic]
requires the Court find that the petitioner is financially able to provide for the
child. No proof was offered regarding the petitioner’s financial ability. No
proof was offered to indicate the Petitioner had adequate housing available or
in fact any housing at all.
(citations to the record omitted).
Father has missed the point. As the Trial Court noted in its June 14, 2010
order: “It appears that the line of attack is not against the issues related to “best interests” but
the adoption itself: can [Petitioner] adequately provide and care [for the Child]?” Father’s
arguments have to do with whether it is in the best interest of the Child for the adoption to
be granted, and nothing whatsoever to do with whether it is in the best interest of the Child
for Father’s parental rights to be terminated, a wholly separate and independent issue.
The Trial Court carefully considered the factors listed in Tenn. Code Ann. §
36-1-113(i) and made specific findings by clear and convincing evidence with regard to those
factors. The evidence in the record on appeal does not preponderate against these findings
made under the clear and convincing standard.
Father argues on appeal that:
The Court relied on the Juvenile Court Order of August 26, 2008 to supply
proof not offered at the Chancery Court trial. However, the findings of the
Juvenile Court relied on by the Chancellor were by probable cause and can not
by themselves rise to the level of proof required for the Chancery Court
findings.
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(citations to the record omitted).
Again, Father has missed the key point. Although the evidence in the record
on appeal may be sparse in some respects, there is sufficient clear and convincing evidence
that Father was convicted by a jury of sexual battery against the Child’s older sister. The
Child’s older sister is Father’s biological daughter and, like the Child, is a minor child. This
critical fact provides strong evidence in support of the Trial Court’s findings by clear and
convincing evidence relative to the factors contained in Tenn. Code Ann. § 36-1-113(i).
Contrary to Father’s assertion, the findings in the Juvenile Court Order of August 26, 2008
were not taken “by themselves.” Other clear and convincing evidence was presented to the
Trial Court.
The evidence in the record on appeal does not preponderate against the findings
made by the Trial Court by clear and convincing evidence that it is in the Child’s best interest
for Father’s parental rights to be terminated. We, therefore, affirm the termination of
Father’s parental rights to the Child. As Father’s parental rights to the Child have been
terminated properly, Father has no legal right to contest the adoption of the Child.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Russell A. N., and his surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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