In Re Martavious B.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 7, 2015

IN RE MARTAVIOUS B. ET AL.

Appeal from the Juvenile Court for Montgomery County

Nos. 14JV1279, 14JV1280, 14JV1281, 14JV3466, 14JV3467, 14JV3468

Timothy K. Barnes, Judge

No. M2015-01144-COA-R3-PT – Filed December 30, 2015

This appeal arises from the termination of Father’s parental rights on two grounds, severe

child abuse and persistence of conditions, and the finding that termination of his parental

rights was in the best interests of his children. Father appeals the trial court’s findings of

persistence of conditions and that it was in the best interests of the children to terminate

his parental rights; however, Father does not appeal the trial court’s finding of severe

child abuse. Because Father did not appeal the ground of severe child abuse, the trial

court’s finding on that ground is final. Only one statutory ground need be found for

termination; therefore, the dispositive issue on appeal is whether the trial court erred in

finding that it was in the best interests of the children to terminate Father’s parental

rights. The evidence in the record clearly and convincingly established that it was in the

best interests of the children to terminate Father’s parental rights. Accordingly, we affirm

the termination of Father’s parental rights.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.

MCCLARTY and KENNY W. ARMSTRONG, JJ., joined.

Brian E. Price, Clarksville, Tennessee, for the appellant, Martavious B.

Herbert H. Slatery, III, Attorney General and Reporter; Rachel Erin Buckley, Assistant

Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of

Children’s Services.

OPINION

The three minor children who are the subject of these proceedings are the children

of Martavious B. (“Father”)1 and Sherrita M. (“Mother”). The Department of Children’s

Services of Tennessee (“the Department”) first became involved with this family on

December 12, 2011, when it received a referral that the minor daughter, Amiya, had been

sexually abused by Father when she was seven years old. By this time the parents were

separated2 and the Department left the children in Mother’s sole custody with instructions

for Mother to supervise any and all contact between the children and Father.

On July 19, 2013, the Department received a referral that Mother had passed away

on July 14, 2013, and the children were living with Father, who had removed the children

from Mother’s residence immediately following her death. On July 22, 2013, the

Department entered into an Immediate Protection Agreement with Father, by which the

children would reside with their stepmother, Brittany L-B., and Father would only have

supervised contact with the children.

On July 26, 2013, the Department filed a petition for dependency and neglect and

for court ordered services. Following a preliminary hearing, the juvenile court found the

children were dependent and neglected, made the Immediate Protection Agreement an

order of the court, and ordered Father to complete a psychosexual evaluation.

The children were removed into state custody on September 13, 2013, when the

Department received a report that Father was violating the court order. At the

adjudicatory hearing on October 22, 2013, at which Father was represented by counsel,

Father stipulated that the children were dependent and neglected. Further, based on

Father’s stipulation of the sex abuse allegations in the petition, the court found the

children were victims of severe abuse pursuant to Tenn. Code Ann. § 37-1-129(a)(2).

Following a review hearing on December 10, 2013, and upon motion of the

Department, the Department was relieved of the duty to exert reasonable efforts to

reunify the children with Father. Further, the court ordered that there be no contact

between Father and the children.

Thereafter, the Department filed the petition to terminate Father’s parental rights

on the grounds of severe child abuse and persistence of conditions. The trial was held on

May 28, 2015. Maria Dabu, a Family Service Worker for the Department, testified that

1

This court has a policy of protecting the identity of children in parental termination cases by

initializing the last names of the parties.

2

The parents separated in 2008 at which time Mother moved to North Carolina with the children.

They returned to Tennessee in 2011. Thereafter, Father had visitation with the children.

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she had been assigned the case since the children entered state custody. She testified that

Father had not completed a psychosexual evaluation or participated in parenting classes

as required. She also stated that Father was required to see a psychiatrist for additional

services, that Father made one appointment at Centerstone,3 he appeared for his

appointment, but left before seeing a psychiatrist. She also explained that she had no

involvement with Father after the Department was relieved of making reasonable

reunification efforts.

Father testified that he made an appointment with Dr. Hebda, a psychologist, to

complete the psychological assessment and Father attended one session. Dr. Hebda

diagnosed him as having Post Traumatic Stress Disorder and attention deficit disorder,

for which he prescribed Adderall and therapy at Centerstone. Father stated that he made

one appointment at Centerstone and that he appeared for his appointment, but left without

seeing anyone after waiting for over an hour. He never returned. As for the parenting

classes, Father stated that he did not know how to go about completing the classes. Father

testified that he began working construction earning $15 an hour the week before trial but

prior to that he was unemployed and had no legal means of income.

The children’s stepmother testified that Father provided all necessary support for

the children before they were placed in state custody, that she did not have any concerns

about his parenting, and she often saw Father hugging and kissing the children.

Father’s grandmother testified that Father was actively involved in the children’s

lives before they were removed. She also stated that she often witnessed his interaction

with the children, and that she had no concerns about Father being around the children.

She said Father took the children to religious services and that it would be in the

children’s best interest for Father to remain in the children’s lives.

At the conclusion of the trial, the court found that the Department had proven two

grounds for termination of Father’s parental rights, severe child abuse and persistence of

conditions, and that termination was in the children’s best interests. This appeal followed.

ANALYSIS

Parents have a fundamental right to the care, custody and control of their children.

Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.

1993). This right is superior to the claims of other persons and the government, yet it is

not absolute. In re Heaven L.F., 311 S.W.3d 435, 438 (Tenn. Ct. App. 2010); In re S.L.A.,

223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).

3

Centerstone is a facility which provides a broad-spectrum of mental health and family services.

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Parental rights may be terminated only where a statutorily defined ground exists.

In re Heaven L.F., 311 S.W.3d at 438; Tenn. Code Ann. § 36-1-113(c)(1). The petitioner

has the burden of proving that a statutory ground for termination exists, such as

abandonment or failing to remedy persistent conditions that led to the removal of the

child. In re Heaven L.F., 311 S.W.3d at 438; Tenn. Code Ann. § 36-1-113(c)(1). Only

one ground need be proved, so long as that ground is proved by clear and convincing

evidence. In re Heaven L.F., 311 S.W.3d at 438 (citing In re D.L.B., 118 S.W.3d 360,

367 (Tenn. 2003)). In addition to proving one of the grounds for termination, the

petitioner must prove that termination of parental rights is in the child’s best interest. Id.;

Tenn. Code Ann. § 36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In

re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000) (holding a court may terminate

a parent’s parental rights if it finds by clear and convincing evidence that one of the

statutory grounds for termination of parental rights has been established and that the

termination of such rights is in the best interests of the child). Therefore, a court may

terminate a person’s parental rights if (1) the existence of at least one statutory ground is

proved by clear and convincing evidence and (2) it is clearly and convincingly

established that termination of the parent’s rights is in the best interest of the child. Tenn.

Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007);

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Whether a statutory ground has been proved by the requisite standard of evidence

is a question of law to be reviewed de novo with no presumption of correctness. In re

Heaven L.F., 311 S.W.3d at 438; In re Adoption of A.M.H., 215 S.W.3d at 810.

Here, the juvenile court found two statutory grounds for terminating Father’s

parental rights: (1) severe child abuse;4 and (2) persistent conditions.5 Father appeals the

4

Severe child abuse is one of the grounds identified in Tenn. Code Ann. § 36-1-113 for

termination of parental rights. The statute reads in pertinent part:

(4) The parent or guardian has been found to have committed severe child abuse as

defined in § 37-1-102, under any prior order of a court or is found by the court hearing

the petition to terminate parental rights or the petition for adoption to have committed

severe child abuse against the child who is the subject of the petition or against any

sibling or half-sibling of such child, or any other child residing temporarily or

permanently in the home of such parent or guardian; . . .

Tenn. Code Ann. § 36-1-113(g)(4). The statute goes on to identify the ground of severe child sexual abuse

as follows:

The parent has been found to have committed severe child sexual abuse under any prior

order of a criminal court; (ii) For the purposes of this section, “severe child sexual abuse”

means the parent is convicted of any of the following offenses towards a child:

(continued…)

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trial court’s decision on only one of the two statutory grounds, leaving the court’s finding

of severe child abuse unchallenged on appeal. Because Father did not appeal the severe

child abuse ground, the Department contends the trial court’s finding on this ground is

final, and this court need not examine the other ground for termination, only whether

termination of Father’s parental rights is in the children’s best interests.

I. GROUNDS FOR TERMINATION

A court may terminate a person’s parental rights if the existence of at least one

statutory ground is proved and that termination of the parent’s rights is in the best interest

of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at

810; In re Valentine, 79 S.W.3d at 546. Father has not challenged the ground of severe

child abuse in this appeal; therefore, one statutory ground for termination has been

established. In re Heaven L.F., 311 S.W.3d at 440; In re D.L.B., 118 S.W.3d at 367.

Whether this court must examine the additional grounds for termination when a

parent fails to challenge all grounds for termination has been addressed in several recent

cases. In In re Carrington H., No. M2014-00453-COA-R3-PT, 2014 WL 5390572 (Tenn.

Ct. App. Oct. 21, 2014), perm. app. granted, (Tenn. Jan. 28, 2015), we provided an in

depth discussion of this specific issue. As we explained, courts generally address only the

(a) Aggravated rape, pursuant to § 39-13-502; (b) Aggravated sexual

battery, pursuant to § 39-13-504; (c) Aggravated sexual exploitation of a

minor, pursuant to § 39-17-1004; (d) Especially aggravated sexual

exploitation of a minor, pursuant to § 39-17-1005; (e) Incest, pursuant to

§ 39-15-302; (f) Rape, pursuant to § 39-13-503; or (g) Rape of a child,

pursuant to § 39-13-522; . . .

Tenn. Code Ann. § 36-1-113(11)(A)(ii).

5

Persistence of conditions is an additional ground identified in Tenn. Code Ann. § 36-1-113 for

termination of parental rights. The statute reads in pertinent part:

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 or parents or the guardian or guardians, 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 or parents or the guardian or guardians in the near future;

and; (C) The continuation of the parent or guardian and child relationship greatly

diminishes the child's chances of early integration into a safe, stable and permanent

home; . . .

Tenn. Code Ann. § 36-1-113(g)(3).

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issues raised by the parties. Id. at *4 (citing Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn.

2012); Tenn. R. App. P. 13(b)). We further noted that:

Party control over issue presentation is considered a defining characteristic

of the American adversarial system. See U.S. v. Burke, 504 U.S. 229, 246,

112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Scalia, J., dissenting). However,

courts may sometimes engage in a sua sponte review of issues not raised by

the parties on appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121, 96

S.Ct. 2868, 49 L.Ed.2d 826 (1976); Blumberg Assocs. Worldwide, Inc. v.

Brown & Brown of Conn., 311 Conn. 123, 84 A.3d 840, 855-69 (Conn.

2014); Bell v. Todd, 206 S.W.3d 86, 90-91 (Tenn. Ct. App. 2005);

Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct.

App. 2000). For example, our courts have considered justiciability issues

even when parties have not presented such issues for review. See, e.g.,

Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988)

(jurisdiction); Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)

(standing); Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014)

(mootness). In addition to justiciability questions, Tennessee Rule of

Appellate Procedure 13(b) recognizes that appellate courts may review

issues not raised by the parties in certain circumstances:

Review generally will extend only to those issues presented

for review. The appellate court shall also consider whether

the trial and appellate court have jurisdiction over the subject

matter, whether or not presented for review, and may in its

discretion consider other issues in order, among other

reasons: (1) to prevent needless litigation; (2) to prevent

injury to the interests of the public; and (3) to prevent

prejudice to the judicial process.

Tenn. R. App. P. 13(b). Despite possessing the discretion to review an issue

not raised by the parties on appeal, “this discretion [should] be sparingly

exercised.” Tenn. R. App. P. 13(b) cmt.

Yet, in the context of parental termination cases, on occasion we have

reviewed all the grounds relied upon by the trial court to terminate parental

rights, even if the parent did not appeal every ground. See, e.g., In re Anya

G., No. E2013-02595-COA-R3-PT, 2014 WL 4233244 (Tenn. Ct. App.

Aug. 27, 2014) (reviewing the ground of abandonment, although the

mother did not appeal that ground); In re Justin K., No. M2012-01779-

COA-R3-PT, 2013 WL 1282009 (Tenn. Ct. App. Mar. 27, 2013)

(examining whether termination was in the children’s best interests due to

the “gravity of the determination,” even though the parent did not brief the

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issue); In re L.M. W., 275 S.W.3d 843 (Tenn. Ct. App. 2008) (discussing

two grounds for termination despite Father’s concession in his brief that the

grounds were established); cf. In re L.L.F., No. M2007-01656-COA-R3-

PT, 2008 WL 555700 (Tenn. Ct. App. Feb. 29, 2008) (reviewing the

statutory ground the mother appealed, but acknowledging that the mother

did not appeal all grounds for termination). We are also mindful of our

Supreme Court’s instruction that we should review every ground relied

upon by the trial court to terminate parental rights in order to prevent

“unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251

n.14 (Tenn. 2010).

However, our Supreme Court’s direction in In re Angela E., 303 S.W.3d

240 (Tenn. 2010), does not mandate review of every ground for termination

of parental rights relied upon by the trial court irrespective of whether an

appeal is taken from every ground. See, e.g., In re Kyla P., No. M2013-

02205-COA-R3-PT, 2014 WL 4217412, at *3 (Tenn. Ct. App. Aug. 26,

2014) (addressing only whether termination was in the child’s best interests

where the father did not appeal any statutory grounds); In re A.T.S., No.

M2004-01904-COA-R3-PT, 2005 WL 229905, at *3 (Tenn. Ct. App. Jan.

28, 2005) (examining only whether termination was in the child’s best

interests where the mother did not appeal the statutory ground). The danger

of “unnecessary remand” from the Supreme Court is largely eliminated

where the issue cannot be raised by the parties in any future appeal. See

State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000) (declining to examine a

claim because it was not raised on direct appeal). In this situation, the trial

court’s determination that one statutory ground for termination is satisfied

is final. Therefore, review of the alternative grounds becomes unnecessary

because the outcome of such a review would not change the presence of at

least one ground for terminating parental rights. Declining to undertake

such a review honors the principle that courts review only those issues

raised by parties and is in keeping with the requirements of Rule 13(b).

Here, the trial court’s finding of Mother’s incompetency is final because

Mother failed to raise this issue on appeal. Forbess v. Forbess, 370 S.W.3d

347, 355 (Tenn. Ct. App. 2011) (citing Newcomb v. Kohler Co., 222

S.W.3d 368, 401 (Tenn. Ct. App. 2006)); In re Alexis L., 2014 WL

1778261, at *2. Because only one statutory ground is necessary for

termination, we move directly to whether termination of Mother’s parental

rights is in the child’s best interests.

In re Carrington H., 2014 WL 5390572, at *4-5.

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Under the reasoning stated above, only one statutory ground is necessary for

termination of Father’s parental rights. Therefore, because Father has not challenged the

ground of severe child abuse in this appeal, it is not necessary for this court to determine

whether the second ground of persistent conditions was established.6

II. BEST INTERESTS OF THE CHILDREN

If one statutory ground for termination is proved by clear and convincing

evidence, a parent’s rights may be terminated if it is also determined that termination of

the parent’s rights is in the best interests of the children. In re Heaven L.F., 311 S.W.3d

at 440; In re D.L.B., 118 S.W.3d at 367. In this case, Father insists the evidence did not

clearly and convincingly demonstrate that it was in the children’s best interests to

terminate his parental rights.

The best interests of the children are to be determined from the perspective of the

children rather than the parent; thus, we will focus our attention on what is best for the

children, not Father. In re Heaven L.F., 311 S.W.3d at 441; In re Marr, 194 S.W.3d 490,

499 (Tenn. Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Nine statutory factors are identified for the court to consider in making a best interest

analysis; however, not every statutory factor applies to every case. In re Carrington H.,

2014 WL 5390572, at *5 (citing In re William T. H., No. M2013-00448-COA-R3-PT,

2014 WL 644730, at *4 (Tenn. Ct. App. Feb. 18, 2014)).

One of the statutory factors to be considered is whether the parent has shown

physical or sexual abuse toward the child, or another child or adult in the family or

household. See Tenn. Code Ann. § 36-1-113(i)(6). Most significant to this factor is that in

October 2013, with the advice of counsel, Father stipulated that he sexually abused

Amiya and, in November 2014, the trial court entered the order finding that the children

were victims of severe abuse by Father. This order has never been challenged.

In relation to the foregoing factor, another statutory factor to be considered is

whether the parent’s home is healthy and safe and whether there is criminal activity in the

home. See Tenn. Code Ann. § 36-1-113(i)(7). The trial court found that, as recently as the

week prior to trial, Father was again incarcerated and that he had been incarcerated for at

least 60 days since the children were placed in foster care, that further charges are

pending that may result in additional incarceration, and that he admitted to selling illegal

drugs as a means to support his children when they resided with him.

6

Although we are not required to examine whether a second ground for termination has been

established, we have reviewed the record and conclude that the Department presented evidence that

clearly and convincingly established the ground of persistent conditions under Tenn. Code Ann. § 36-1-

113. Therefore, we affirm the trial court’s ruling on the ground of persistent conditions.

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Whether the parent 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 is another statutory factor the trial court considered. See Tenn. Code

Ann. § 36-1-113(i)(1). The trial court determined that Father had “not made any

adjustment of circumstances, conduct or conditions as to make it safe and in the

children’s best interest to return to his care, and that he made very little meaningful effort

to make it safe for the children to return home.” This is fully supported by the record for

Father truly did nothing to remedy the conditions that existed following the removal of

the children.

Additionally, whether the parent or guardian has maintained regular visitation or

other contact with the child is a factor to be considered. See Tenn. Code Ann. § 36-1-

113(i)(3). The trial court found that Father “failed to maintain regular visitation with the

children . . . when he was allowed to do so,” which was based, in part, on the testimony

of Ms. Dabu. She stated that she called Father three or four times a month for the first

three months the children were in foster care to arrange visits, that Father scheduled only

one visit during these months, and Father then failed to participate in the visit.

Significantly, Father did not contest these facts. For these and other reasons, the trial

court concluded that Father failed to visit his children.

Another statutory factor that may be considered is the effect a change of caretakers

and physical environment is likely to have on the child’s emotional, psychological and

medical condition. See Tenn. Code Ann. § 36-1-113(i)(5). The trial court found that the

children are in a safe and loving foster home, they are happy, well adjusted, their needs

are being met, and it has been over a year since they have asked for Father.

Based on these and other findings, the court determined that termination of

Father’s parental rights was in the children’s best interests.

Here, the material facts relevant to the children’s best interests are not in dispute.

We conclude that these facts clearly and convincingly support the findings of the trial

court and the conclusion that termination of Father’s parental rights is in the children’s

best interests.

IN CONCLUSION

To terminate the parental rights of a parent, a trial court must determine by clear

and convincing evidence that at least one of the statutory grounds for termination exists

and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re

Heaven L.F., 311 S.W.3d at 440; In re Valentine, 79 S.W.3d at 546. In this case, both

have been established by clear and convincing evidence. Therefore, we affirm the

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termination of Father’s parental rights, and this matter is remanded with costs of appeal

assessed against Father.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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