In Re Kendal A.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 21, 2014 Session

IN RE KENDAL A.

Appeal from the Chancery Court for Obion County

No. 30601 W. Michael Maloan, Chancellor

No. W2014-00638-COA-R3-PT - Filed November 17, 2014

The trial court terminated Mother’s parental rights on the grounds of abandonment by an

incarcerated parent and severe child abuse, and found that termination of Mother’s rights was

in the child’s best interest. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

A RNOLD B. G OLDIN, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,

P.J.,W.S. and R ICHARD H. D INKINS, J. joined.

James T. Powell, Union City, Tennessee for the appellant, Kristy W.

Robert E. Cooper, Jr., Attorney General and Reporter; Ryan L. McGehee, Assistant Attorney

General, for the appellee, State of Tennessee, Department of Children’s Services.

MEMORANDUM OPINION 1

The facts giving rise to this termination of parental rights action are largely

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the

actions of the trial court by memorandum opinion when a formal opinion would have no precedential

value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM

OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated

case.

undisputed. Kendal A. is a non-marital child born in July 2012.2 Both Mother and Kendal

tested positive for “benzos” when Kendal was born. In August 2012, Mother was arrested

for DUI and reckless endangerment while Kendal was a passenger in Mother’s vehicle. She

subsequently pled guilty to the DUI and was sentenced to 11 months and 29 days, to serve

30 days. Mother’s driver’s license also was revoked.

In November 2012, the Department of Children’s Services (“DCS”) filed a petition

for dependency and neglect in the Juvenile Court of Obion County against Mother, Kendal’s

father (“Father”) and the father of Mother’s older child K. W., who was born in October

2005. Following appointment of attorneys to represent the parents and a guardian ad litem,

the petition was heard in February 2013. By order entered March 5, 2013, the juvenile court

found that there was a danger of immediate harm to the children due to dependency and

neglect, but that there was a less drastic alternative to removal at that time. The juvenile

court ordered Mother and Father to submit to alcohol and drug assessments and to follow all

recommendations. It also ordered Mother to submit to random drug screens due to her

involvement in a methadone program.

In the meantime, DCS received a referral in January 2013 and visited Mother’s home

in February 2013. Mother refused to submit to a drug screening. When DCS visited again

in March 2013, Mother tested positive for morphine and opiates. She was arrested for

possession of a schedule II drug while the DCS investigator was present in Mother’s home

and Kendal was placed in State custody. On March 19, 2013, DCS filed a second petition

for dependency and neglect and sought an award of temporary legal custody of K. W. to her

father and of Kendal to DCS. The trial court entered a protective custody order on March

19, 2013; K. W. was placed in the custody of her father, and Kendal was placed in DCS

custody. In April, Mother and Kendal tested positive for cocaine and benzoylecgonine.

Mother and Father were arrested and charged with attempted aggravated child neglect for

allowing Kendal to be exposed to cocaine. Mother pled guilty and was incarcerated from

April 16 through August 9, 2013.

In June 2013, Mother and Father stipulated in the Obion County Juvenile Court that

Kendal was dependent and neglected, but denied allegations of severe child abuse. In July

2013, while Mother and Father were incarcerated, DCS filed a petition in the Chancery Court

of Obion County to terminate Mother’s and Father’s parental rights on the grounds of

abandonment by an incarcerated parent and severe child abuse. DCS further alleged that

termination of parental rights was in Kendal’s best interest. In September 2013, Mother

signed a treatment plan agreeing to complete a residential treatment program, to follow

recommendations to address her substance abuse issues, to complete aftercare services, and

to abstain from drug and alcohol use. She entered a rehabilitation program in October 2013

and was successfully discharged in November 2013. However, she failed to attend aftercare

2

In cases involving minor children, it is this Court’s policy to redact names to protect the

children’s identity.

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rehabilitation or attend any AA or NA meetings. Following a hearing on October 21, 2013,

the trial court terminated Father’s parental rights on the grounds of severe child abuse and

abandonment by an incarcerated parent.

The trial court heard the petition to terminate Mother’s parental rights on March 5,

2014. Brittany Hudson (“Ms. Hudson”), the DCS case manager who signed DCS’s petition

to terminate parental rights, left DCS employment in December 2013 and did not testify at

trial. DCS witnesses included Brenda Scott (“Ms. Scott”), the investigator who was present

in Mother’s home when she was arrested in March 2013; Jill Ferrie (“Ms. Ferrie”), a DCS

investigator who began working with Mother in August 2012; and Jack Horton (“Mr.

Horton”), the case manager who replaced Ms. Hudson. Additionally, Lisa Piercey, M.D.

(“Dr. Piercey”) testified by deposition that cocaine was found in a hair follicle drug screen

from Kendal. Mother testified that she was not currently in a position to care for Kendal;

that she was unemployed; and that she was living with Father, whose parental rights were

terminated in November 2013.3 She further testified that she had no transportation and that

she had not begun aftercare rehabilitation programs or attended any AA/NA meetings.

The trial court found that clear and convincing evidence supported termination of

Mother’s parental rights on the grounds of abandonment by an incarcerated parent and severe

child abuse. It also found that termination of Mother’s parental rights was in Kendal’s best

interest. The trial court entered final judgment in the matter on March 17, 2014, and Mother

filed a timely notice of appeal to this Court.

Issues Presented

Mother presents the following issues for our review, as stated by Mother in her brief:

1) Did the trial court err in allowing evidence to be entered over the objection

of counsel for the petitioner?

2) Did the trial court err in allowing the proceedings to go forward even

though the petitioner was not present for the State?

Standard of Review

Appellate review of the findings of facts of a trial court sitting without a jury is de

novo upon the record with a presumption of correctness unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); In Re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)

(citation omitted). Insofar as a factual finding is based upon the trial court’s assessment of

witness credibility, we will not reverse that finding absent clear and convincing evidence to

the contrary. In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). No presumption

of correctness attaches, however, to a trial court’s conclusions of law. Tenn. R. App. P.

3

Father did not appeal termination of his parental rights.

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13(d); Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 414 (Tenn. 2013). Whether the

facts of the case support a statutory ground for termination of parental rights is a question of

law that we review de novo with no presumption of correctness. In re Adoption of A.M.H.,

215 S.W.3d 793, 810 (Tenn. 2007) (citation omitted).

Tennessee Code Annotated § 36–1–113 governs the termination of parental rights.

The Code provides, in pertinent part:

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that the grounds

for termination of parental or guardianship rights have been established; and

(2) That termination of the parent’s or guardian’s rights is in the best interests

of the child.

Tenn. Code Ann. § 36–1–113(c)(2010). Accordingly, the trial court must determine whether

clear and convincing evidence supports a finding that 1) the parent’s actions constitute a

statutory ground for termination and 2) termination of parental rights is in the child’s best

interest. Tenn. Code Ann. § 36–1–113(c)(2010). Upon review, we must distinguish between

the trial court’s specific findings of fact and “the combined weight of these facts.” In re

M.J.B., 140 S.W.3d 643, 654 n. 35 (Tenn. Ct. App. 2004) (citing In re Valentine, 79 S.W.3d

539, 548-49 (Tenn. 2002)). Although we presume the trial court’s specific findings of fact

to be correct if supported by a preponderance of the evidence, we “must then determine

whether the combined weight of these facts provides clear and convincing evidence

supporting the trial court’s ultimate factual conclusion.” In re Michael C. M., No.

W2010–01511–COA–R3–PT, 2010 WL 4366070, at *2 (Tenn. Ct. App. Nov.5, 2010).

Discussion

The trial court terminated Mother’s parental rights on the grounds of abandonment by

an incarcerated parent as provided by Tennessee Code Annotated § 36-1-113(g)(1) and severe

child abuse as provided by Tennessee Code Annotated § 36-1-113(g)(4). The Code defines

abandonment, in relevant part, to mean that:

A parent or guardian is incarcerated at the time of the institution of an action

or proceeding to declare a child to be an abandoned child, or the parent or

guardian has been incarcerated during all or part of the four (4) months

immediately preceding the institution of such action or proceeding, and either

has willfully failed to visit or has willfully failed to support or has willfully

failed to make reasonable payments toward the support of the child for four (4)

consecutive months immediately preceding such parent’s or guardian’s

incarceration, or the parent or guardian has engaged in conduct prior to

incarceration that exhibits a wanton disregard for the welfare of the child[.]

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Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). Section 37-1-102(b)(21) (2014) defines

severe child abuse as:

(A)(i) The knowing exposure of a child to or the knowing failure to protect a

child from abuse or neglect that is likely to cause serious bodily injury or death

and the knowing use of force on a child that is likely to cause serious bodily

injury or death;

(ii) “Serious bodily injury” shall have the same meaning given in

§ 39-15-402(d).

(B) Specific brutality, abuse or neglect towards a child that in the opinion of

qualified experts has caused or will reasonably be expected to produce severe

psychosis, severe neurotic disorder, severe depression, severe developmental

delay or intellectual disability, or severe impairment of the child’s ability to

function adequately in the child's environment, and the knowing failure to

protect a child from such conduct;

(C) The commission of any act towards the child prohibited by §§ 39-13-502

-- 39-13-504, 39-13-515, 39-13-522, 39-15-302, 39-15-402, and 39-17-1005

or the knowing failure to protect the child from the commission of any such act

towards the child; or

(D) Knowingly allowing a child to be present within a structure where the act

of creating methamphetamine, as that substance is identified in

§ 39-17-408(d)(2), is occurring[.]

It is undisputed that Mother was incarcerated when DCS filed its petition to terminate

her parental rights in July 2013. The trial court found that Mother abandoned Kendal for

purposes of the section where Mother had engaged in conduct prior to her incarceration that

exhibited a wanton disregard for Kendal’s welfare. The trial court found that Mother used

illegal drugs before and after Kendal’s birth, that Kendal was born with cocaine in her

system, and that drug screens revealed that Kendal was exposed to cocaine. It also is

undisputed that Mother operated her vehicle while intoxicated and/or under the influence of

illegal substances while Kendal was in the vehicle; that Father’s parental rights were

terminated on the grounds of abandonment by an incarcerated parent and severe child abuse

and that Father did not appeal termination; and that Mother is unemployed and living with

Father.

We observe that Mother does not raise the trial court’s factual findings or its

conclusion that DCS carried its burden to demonstrate grounds by clear and convincing

evidence as issues in her brief to this Court. Rather, she asserts 1) that the trial court erred

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by permitting DCS to question Mother regarding whether she had been arrested for having

methamphetamine in her purse where the relevant arrest warrant had been dismissed and 2)

by permitting the case to be heard without Ms. Hudson’s participation. Mother’s argument,

as we understand it, is that evidence of the allegedly dismissed arrest warrant was prejudicial

and that she was denied her right to question Ms. Hudson, who signed the petition to

terminate Mother’s parental rights but did not testify at trial.

We turn first to Mother’s assertion that the trial court erred by allowing DCS to

question Mother with respect to whether she was arrested for having methamphetamine in

her purse. Under Rule 402 of the Tennessee Rules of Evidences, relevant evidence is

generally admissible, while irrelevant evidence is not. The Rules of Evidence define

“relevant evidence” as “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence .” Tenn. R. Evid. 401. We review a trial court’s evidentiary

decisions under an abuse of discretion standard. Biscan v. Brown, 160 S.W.3d 462, 468

(Tenn. 2005) (citation omitted). A trial court abuses its discretion “only when it ‘applie[s]

an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that

cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85

(Tenn.2001)(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)). This standard does

not allow an appellate court to substitute its judgment for that of the trial court. Id. (citing

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998)). Rather, the abuse of discretion

standard “‘reflects an awareness that the decision being reviewed involved a choice among

several acceptable alternatives,’” and therefore “‘envisions a less rigorous review of the

lower court’s decision and a decreased likelihood that the decision will be reversed on

appeal.’” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.2010) (quoting Lee Medical,

Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010)).

Upon review of the transcript of the March 2014 hearing of this matter, we observe

that counsel for DCS asked Mother whether she recalled testing positive for

methamphetamine and morphine, and stated, “That was also the day you were arrested for

having methamphetamine in your purse.” Mother stated, “Yes[,]” and counsel objected on

the ground that the warrant stated that it was dismissed. The trial court noted that Mother

would have an opportunity to cross-examine on the matter, and no further questioning ensued

with respect to the arrest warrant.

Without holding that the trial court erred by admitting the March 2013 arrest warrant

into evidence, to the extent that the trial court arguably so erred the error was harmless in

light of the undisputed facts of this case and the totality of the evidence. Mother testified that

she was arrested in April 2013 and charged with attempted aggravated child neglect, and that

she pled guilty to that offense. Dr. Piercey testified by deposition that she examined Kendal

on May 20, 2013; that a hair follicle drug screen of Kendal in April 2013 was positive for

cocaine and benzoylecgonine; that exposure to cocaine by an infant carries serious short-

term, medium-term and long-term health risks, including stunted organ growth and death;

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and that the fact that Kendal was not currently displaying any symptoms did not negate the

dangers of being exposed to cocaine as an infant. Dr. Piercey testified:

My assessment for this child based on my medical opinion was severe physical

abuse secondary to drug exposure and drug endangerment. I further opined

that the direct exposure to the use of cocaine may cause long term impairment

of neurological, behavioral, respiratory and/or other organ development. My

opinion was that of severe physical abuse. From a medical standpoint, that

means life threatening or potentially life altering.

We discern no reversible error on the part of the trial court.

We next turn to Mother’s assertion that the trial court erred by allowing the matter to

go forward without the participation of Ms. Hudson, who signed the July 2013 petition to

terminate Mother’s parental rights. In her brief, Mother asserts that Ms. Hudson was the

“petitioner” in this matter and that Mother was denied her right to cross-examine Ms. Hudson

where Ms. Hudson did not testify at trial. Mother further asserts that Mr. Horton had no

personal knowledge of the events leading to DCS’s petition to terminate Mother’s rights, and

that he therefore was not a proper witness.

Contrary to Mother’s assertion, DCS is the petitioner in this matter. Ms. Hudson is

not. Although Ms. Hudson signed DCS’s petition to terminate Mother’s parental rights, she

did so not in her personal capacity but as a representative of DCS. We additionally note that,

contrary to Mother’s assertion in her brief, Mother was not deprived of her right to cross-

examine a witness against her where Ms. Hudson did not testify in this matter. The

allegations contained in DCS’s petition do not constitute evidence or testimony, and DCS had

the burden of proof to demonstrate grounds for termination. To the extent that Mother

asserts that Ms. Hudson was an indispensable witness in this case, we observe that Mother

did not seek to subpoena Ms. Hudson. Additionally, regardless of Mr. Horton’s personal

knowledge of the events giving rise to this action, or lack thereof, Ms. Scott and Ms. Ferrie

also testified at the hearing of this matter, and Dr. Piercey testified by deposition. The

combined testimony of the witnesses was sufficient to demonstrate grounds for termination

notwithstanding the absence of Ms. Hudson. This issue is without merit. Upon review of

the record transmitted to this Court, moreover, we affirm the trial court’s determination that

termination of Mother’s parental rights is in Kendal’s best interests.

Holding

In light of the foregoing, we affirm the judgment of the trial court. Costs on appeal

are taxed to Mother. Because Mother is proceeding in forma pauperis in this appeal,

execution may issue for costs if necessary. This matter is remanded to the trial court for

enforcement of the judgment and the collection of costs.

_________________________________

ARNOLD B. GOLDIN, JUDGE

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