In Re William C.

04/18/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 1, 2024

IN RE WILLIAM C.

Appeal from the Juvenile Court for Pickett County

No. 1649 James Reed Brown, Judge

No. M2023-00646-COA-R3-PT

A father was found to have committed severe child abuse in a dependency and neglect case.

The Department of Children’s Services subsequently filed a petition to terminate the

father’s parental rights based on the previous finding of severe child abuse. Father asserts

that the trial court erred in failing to continue the termination proceedings in his absence,

in finding a ground for termination of his parental rights, and in determining that

termination was in the child’s best interest. Discerning no error, we affirm the trial court’s

decision.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which CARMA DENNIS

MCGEE and KRISTI M. DAVIS, JJ., joined.

Kelly R. Williams, Livingston, Tennessee, for the appellant, Joseph C.

Jonathan Skrmetti, Attorney General and Reporter, and Katherine P. Adams, Assistant

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

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This case concerns the termination of Joseph C.’s (“Father’s”) parental rights to his

son, William C. (born in July 2021). William was born drug-exposed due to his mother,

Sheyanne P., (“Mother”) using various drugs throughout the pregnancy. Mother regularly

tested positive for buprenorphine, methamphetamine, and amphetamines during the

pregnancy. At William’s birth, Mother tested positive only for buprenorphine,1 and

William required treatment for symptoms associated with the drug withdrawal.

Because of Mother’s positive drug test, the hospital contacted the Department of

Children’s Services (“DCS” or “the Department”). A DCS case manager responded to the

hospital and spoke to both Mother and Father. Mother reported that she had used

methamphetamine intravenously one to two times per week while she was pregnant with

William. Father reported that he had not used drugs or alcohol recently, though he admitted

that he had used drugs in the past. Father refused to submit to a drug screen and reported

that he did not have any criminal history. However, after investigating further, DCS found

that Father has an extensive criminal history, including charges for domestic assault. The

Department case manager also found that Mother had been treated less than two weeks

prior to William’s birth for abdominal trauma and had reported that the cause of the trauma

was Father kicking her in the stomach. As a result of these findings, William was removed

from his parent’s custody and placed in a kinship placement, where he has remained

throughout these proceedings.

On July 29, 2021, DCS filed a petition in the Pickett County Juvenile Court to

declare William dependent and neglected and to grant DCS temporary legal custody. As a

basis for its petition, DCS alleged that William was born drug-exposed and had sustained

trauma from Father kicking Mother in the stomach. The court entered a protective order

placing William into the custody of DCS. On May 3, 2022, the court held a final hearing

on the dependency and neglect petition. Neither Mother nor Father was present for this

hearing. The court entered a default adjudication against both parents in light of the fact

that both were served and failed to appear to defend in the matter. Due to Mother’s drug

use during her pregnancy, the court specifically found both Mother and Father had

committed severe child abuse against William. The court based its finding of severe child

abuse by Father on two facts: the fact that Father knew of Mother’s drug use and failed to

stop her from using drugs, and Mother’s report that Father kicked her in the stomach while

she was pregnant with William. Based upon the same set of facts, the court also found that

it was in William’s best interest to remain in the Department’s custody. A written order

was entered the next day. Father did not appeal this order, and it became a final order.

On September 23, 2022, DCS filed a petition in Pickett County seeking to terminate

Father’s parental rights. In its petition, DCS alleged three grounds for termination: (1)

abandonment by failure to support or visit, (2) failure to manifest an ability or willingness

to assume custody, and (3) severe child abuse. However, at the conclusion of the hearing,

1

Buprenorphine is prescribed to treat opioid use disorder to limit withdrawal symptoms from use of

other opioids, such as heroin or morphine. Buprenorphine, SUBSTANCE ABUSE AND MENTAL HEALTH

SERV. ADMIN., https://www.samhsa.gov/medications-substance-use-disorders/medications-counseling-

related-conditions/buprenorphine (last visited Mar. 8, 2024).

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DCS conceded the first two grounds and based its termination action solely on severe child

abuse.

The hearing on the petition was held over two days, January 17 and February 17,

2023. The second day of the hearing was originally to take place on February 3, but it was

continued to the later date. At the first day of the hearing, the court heard testimony from

the DCS caseworker assigned to William and from Father. The Department entered the

final order from the previous adjudication of dependency and neglect into evidence to

prove the ground of severe child abuse. Neither Father nor Mother was present at the

second day of the hearing. Father’s counsel objected to the hearing moving forward, saying

that she was unsure if Father knew to be there that day. The court overruled this objection,

stating that Father had come to the courthouse around the original date for day two of the

hearing and was told to contact his attorney. On the second day of the hearing, William’s

foster parents testified. At the conclusion of the hearing, the court found that DCS had

proven by clear and convincing evidence both the severe abuse ground and that termination

was in William’s best interest.

Sometime after this hearing, but before the court entered a final order, Father filed

a motion to set aside the court’s order pursuant to Tenn. R. Civ. P. 60.02. 2 The court entered

an order denying this motion on March 6, 2023. The court entered a final order terminating

Father’s parental rights on April 4, 2023.3 Father timely appealed, presenting the following

issues for our review: (1) whether the trial court erred in not continuing the hearing in

Father’s absence; (2) whether the trial court properly determined that a ground existed to

terminate Father’s parental rights; and (3) whether the trial court properly determined that

termination of Father’s parental right was in William’s best interest.

STANDARD OF REVIEW

When a court terminates a person’s parental rights, the order has “the effect of

severing forever all legal rights and obligations” between the parent and his or her child.

Tenn. Code Ann. § 36-1-113(l)(1). A parent has a fundamental liberty interest in the care,

custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re

Angela E., 303 S.W.3d 240, 250 (Tenn. 2010) (citing Troxel v. Granville, 530 U.S. 57, 65

(2000)); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v.

Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Even though this right is fundamental, it

is not absolute in nature, and this right may be forfeited by a parent who abandons or

otherwise conducts themselves in a manner that substantially harms the child. In re Angela

E., 303 S.W.3d at 250. In Tennessee, termination proceedings are governed by statute.

2

This motion is not included in the record. Only the court’s order denying this motion is included.

3

The trial court also terminated Mother’s parental rights. She did not appeal and is, therefore, not a

party to this appeal.

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Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). The Tennessee General Assembly has

laid out the framework for “‘those situations in which the state’s interest in the welfare of

a child justifies interference with a parent’s constitutional rights by setting forth grounds

on which termination proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565,

568 (Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-00999-COA-R3-PT,

M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)).

The grounds and proceedings by which parental rights may be terminated are found

in Tenn. Code Ann. § 36-1-113. The first determination the trial court must make is whether

at least one ground exists for termination. Tenn. Code Ann. § 36-1-113(c)(1); In re Marr,

194 S.W.3d 490, 498 (Tenn. Ct. App. 2005). Second, the court determines whether

termination is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c)(2); In re

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The petitioner bears the burden of proving

both steps of the termination process by clear and convincing evidence. In re Angela E.,

303 S.W.3d at 250. This is because “parents are constitutionally entitled to fundamentally

fair procedures in termination proceedings.” In re Carrington H., 483 S.W.3d 507, 522

(Tenn. 2016) (citing Santosky v. Kramer, 455 U.S. 745, 754 (1982)).

The clear and convincing evidence standard minimizes the risk of unnecessary or

erroneous governmental interference with fundamental parental rights. In re Bernard T.,

319 S.W.3d 586, 596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder

to form a firm belief or conviction regarding the truth of the facts, and eliminates any

serious or substantial doubt about the correctness of these factual findings.” Id. (citations

omitted). The use of this standard ensures that the facts are established as highly probable,

rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.

Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Therefore, when evaluating a court’s decision to terminate parental rights, we apply

the following principles:

An appellate court reviews a trial court’s findings of fact in termination

proceedings using the standard of review in Tenn. R. App. P. 13(d). In re

Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 246. Under

Rule 13(d), appellate courts review factual findings de novo on the record

and accord these findings a presumption of correctness unless the evidence

preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In re M.L.P.,

281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d

793, 809 (Tenn. 2007). In light of the heightened burden of proof in

termination proceedings, however, the reviewing court must make its own

determination as to whether the facts, either as found by the trial court or as

supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate parental rights.

In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the

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evidence sufficiently supports termination of parental rights is a conclusion

of law, which appellate courts review de novo with no presumption of

correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of

A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in

parental termination appeals, as in other appeals, are reviewed de novo with

no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 523-24.

ANALYSIS

I. Father’s challenge to the court’s denial of a continuance

Father first argues that the trial court erred when, on the second day of the hearing,

it denied his request for a continuance based on lack of notice.4 “Due process requires that

‘all parties to litigation . . . receive notice of important hearings and other proceedings.’”

In re A.W., No. M2020-00892-COA-R3-PT, 2021 WL 4075102, at *5 (Tenn. Ct. App.

Sept. 8, 2021) (quoting Bryant v. Edwards, 707 S.W.2d 868, 870 (Tenn. 1986)). The notice

must be “‘reasonably calculated[,] under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their objections.’”

Id. (quoting Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002)).

We must, therefore, determine whether Father had adequate notice of the hearing.

There is no question here that Father was represented by an attorney during the termination

proceedings, and the original date for the second day of the hearing was continued on a

conference call Father’s attorney participated in after Mother’s attorney could not attend.

Father’s attorney was also present at the second day of the hearing. “The question of when

notice to a litigant’s or former litigant’s attorney constitutes reasonable notice to the client

himself turns upon the nature of their relationship at that time. If the attorney still represents

the client, then notice is sufficient.” Jarvis v. Jarvis, 664 S.W.2d 694, 696-97 (Tenn. Ct.

App. 1983) (citation omitted). Therefore, we cannot say that Father lacked notice of the

second hearing date.

4

Father cites to “[Tenn. R. Civ. P.] 112(a)(1)” as requiring a court to ensure that all necessary parties

are present before proceeding. As Tennessee’s Rules of Civil Procedure do not have a rule 112, we deduce

that Father intended to reference Tenn. R. Juv. P. Rule 112(a)(1). The Tennessee Rules of Juvenile

Procedure, however, do not apply to termination proceedings. See Tenn. R. Juv. P. 101(3)(A) (“The

Tennessee Rules of Civil Procedure shall govern the following proceedings . . . the termination of parental

rights pursuant to T.C.A. § 36-1-113.”).

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Having determined that Father had notice of the hearing, we now turn to whether

the court abused its discretion by not continuing the hearing.5 The decision of whether to

grant or deny a motion for a continuance is fully within the discretion of the court. Blake

v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). We have previously been instructed

by our Supreme Court that, “[u]nder the abuse of discretion standard, a trial court’s ruling

‘will be upheld so long as reasonable minds can disagree as to propriety of the decision

made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33

S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). When

applying the abuse of discretion standard, we conduct a less rigorous review of the trial

court’s decision, and there is a decreased likelihood that the decision will be overturned on

appeal. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). A reviewing court

is not allowed to substitute its own judgment for the judgment of the trial court. Myint v.

Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). This does not mean, however, that

discretionary decisions are immune from meaningful review. Lee Med., Inc., 312 S.W.3d

at 524. Such decisions “must take the applicable law and the relevant facts into account.”

Id. Therefore, a discretionary decision will not be upheld if “it causes an injustice to the

party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an

illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.” Id.

The party seeking a continuance bears the burden of establishing circumstances

exist warranting the granting of a continuance. Osagie v. Peakload Temp. Servs., 91

S.W.3d 326, 329 (Tenn. Ct. App. 2002). When considering a motion for a continuance,

courts consider the following factors, among others “(1) the length of time the proceeding

has been pending, (2) the reason for the continuance, (3) the diligence of the party seeking

the continuance, and (4) the prejudice to the requesting party if the continuance is not

granted.” Nagarajan v. Terry, 151 S.W.3d 166, 172 (Tenn. Ct. App. 2003) (footnotes

omitted). We review “the underlying factual findings using the preponderance of the

evidence standard contained in Tenn. R. App. P. 13(d) and [we] review the lower court’s

legal determinations de novo without any presumption of correctness.” Lee Med., 312

S.W.3d at 525.

Applying the Terry factors, we cannot say that the trial court abused its discretion

in overruling Father’s attorney’s objection to the second day of proceedings continuing

without Father. The proceeding had been pending for several months at this point. Counsel

provided no reason for Father’s absence apart from him not knowing about the second day

of the hearing being rescheduled. However, as stated above, Father had notice of the new

hearing date through his attorney participating in the conference call continuing the second

5

Father avers that he filed a motion to reconsider pursuant to Tenn. R. Civ. P. 60.02 (which addresses

the grounds for relief from a final judgment) after the second day of the hearing. It appears from Father’s

brief that he appeals the trial court’s overruling of his objection to the hearing proceeding (which was,

essentially, a request to continue the hearing), not the court’s denial of his Rule 60 motion.

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hearing date and as evidenced by Father’s attorney’s presence at the second hearing.

Furthermore, the record indicates that Father went to the courthouse on or about February

5 and was told to contact his attorney. The record contains no evidence of diligence on

Father’s part, either to contact his attorney or to request the continuance if he was unable

to attend the hearing. Father does not assert any prejudice in his brief and we discern none

from the record. We find no abuse of discretion in the trial court’s decision here.6

II. Father’s challenge to the severe child abuse finding

We now turn to Father’s argument that the court erred in finding that DCS proved

by clear and convincing evidence the existence of the termination ground found in Tenn.

Code Ann. § 36-1-113(g)(4), which provides that parental rights may be terminated if the

parent has been found to have committed severe child abuse as defined in Tenn. Code Ann.

§ 36-1-102 “under any prior order of a court.”

In the juvenile court’s May 4, 2022, order adjudicating William dependent and

neglected, the court found that Father committed severe child abuse as defined in Tenn.

Code Ann. § 37-1-102(27)(A),7 (E).8 Father did not appeal that order, and it became a final

judgment. This Court has held, under the doctrine of res judicata, that a final order

containing a finding of abuse cannot be attacked in subsequent actions. See, e.g., In re

Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010); State Dept. of Human Serv. v.

Tate, No. 01-A-01-9409-CV-00444, 1995 WL 138858, at *5 (Tenn. Ct App. Mar. 31,

1995). “The doctrine of res judicata applies when ‘an existing final judgment rendered

upon the merits, without fraud or collusion, by a court of competent jurisdiction, is

conclusive of rights, questions and facts in issue as to the parties and their privies, in all

other actions in the same or any other judicial tribunal of concurrent jurisdiction.’” In re

Heaven L.F., 311 S.W.3d at 439 (quoting Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn.

Ct. App. 1990)). Father and DCS were both parties to the dependency and neglect hearing,

and the issue of whether Father committed severe child abuse was decided by the court.

Therefore, the prior determination that Father committed severe child abuse is res judicata,

6

We have previously affirmed a trial court’s decision not to grant a continuance in a termination case.

See In re Anna W., No. W2022-00657-COA-R3-PT, 2022 WL 17820763, at *3 (Tenn. Ct. App. Dec. 20,

2022).

7

Subsection (27)(A) of the statute defines severe child abuse as “[t]he 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[.]”

Tenn. Code Ann. § 37-1-102(27)(A).

8

Subsection (27)(E) of the statute defines severe child abuse as “[k]nowingly or with gross negligence

allowing a child under eight (8) years of age to ingest an illegal substance or a controlled substance that

results in the child testing positive on a drug screen, except as legally prescribed to the child[.]” Tenn. Code

Ann. § 37-1-102(27)(B).

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and the trial court properly found by clear and convincing evidence that a ground for

termination existed pursuant to Tenn. Code Ann. § 36-1-113(g)(4).

III. Best interest analysis

We now turn to the issue of whether the termination is in the best interests of the

child. In making this determination, courts are directed by statute to consider the

nonexclusive factors found in Tenn. Code Ann. § 36-1-113(i)(1). Under the statute, the

court “shall consider” these factors, In re Angela E., 303 S.W.3d at 251, but courts are not

required to find that each of these factors exists before ultimately concluding that it is in

the best interest of the child to terminate a parent’s rights. In re M.A.R., 183 S.W.3d at 667.

The relevancy and weight of each factor is unique to each individual case, and courts should

not undergo a mechanical determination of each of the statute’s factors. In re Marr, 194

S.W.3d at 499. Consideration of these factors is to be taken from the child’s perspective,

not the parent’s perspective, and in some instances, a court’s consideration of one factor

alone may be determinative to the outcome of the analysis. Id. (citing In re Audrey S., 182

S.W.3d at 878). Even if one factor is determinative, the court must still consider each factor

and any relevant proof. In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).

When a court is undergoing the best interest analysis, the facts must be proven by

“‘a preponderance of the evidence, not by clear and convincing evidence.’” Id. at 681

(quoting In re Kaliyah S., 455 S.W.3d 553, 555 (Tenn. 2015)). After a court makes these

factual findings, “‘the trial court should then consider the combined weight of those facts

to determine whether they amount to clear and convincing evidence that termination is in

the child’s best interest[s].’” Id. (quoting In re Kaliyah S., 455 S.W.3d at 555).

Factor A concerns “[t]he effect a termination of parental rights will have on the

child’s critical need for stability and continuity of placement throughout the child’s

minority” Tenn. Code Ann. § 36-1-113(i)(1)(A). We agree with the trial court’s

determination that terminating Father’s parental rights will have a positive impact on

William’s need for stability and continuity of placement throughout his minority because

William bonded with the foster parents and accepted them as his parents. See id. § 36-1-

113(i)(1)(H). (“Whether the child has created a healthy parental attachment with another

person or persons in the absence of the parent.”). In contrast, returning William to Father

would have a detrimental effect on William. In particular, Father does not know William’s

needs as Father never visited and did not cultivate a relationship with William. See id. §

36-1-113(i)(1)(C), (D), (E) (“Whether the parent has demonstrated continuity and stability

in meeting the child’s basic material, education, housing, and safety needs;” “[w]hether the

parent and child have a secure and healthy parental attachment, and if no, whether there is

a reasonable expectation that the parent can create such attachment;” and “[w]hether the

parent has maintained regular visitation or other contact with the child and used the

visitation or other contact to cultivate a positive relationship with the child.”). Indeed,

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Father stated it would be best for William to stay with his foster parents until Father could

establish adequate stability.

Next, under Factor J, we consider “[w]hether the parent has demonstrated such a

lasting adjustment of circumstances, conduct, or conditions to make it safe and beneficial

for the child to be in the home of the parent, including consideration of whether there is

criminal activity in the home or by the parent, or the use of alcohol, controlled substances,

or controlled substance analogues which may render the parent unable to consistently care

for the child in a safe and stable manner.” Id. § 36-1-113(i)(1)(J). Nothing in the record

shows that Father made any lasting changes that would make it safe and beneficial for

William to be in his home. Father has accrued criminal charges since William’s birth and

he refused to cooperate with DCS’s requests that he submit to drug screens. See id. § 36-

1-113(i)(1)(M) (“Whether the parent has demonstrated a sense of urgency in establishing

paternity of the child, seeking custody of the child, or addressing the circumstance,

conduct, or conditions that made an award of custody unsafe and not in the child’s best

interest.”).

Factor N pertains to “[w]hether the parent, or other person residing with or

frequenting the home of the parent, has shown brutality or physical, sexual, emotional, or

psychological abuse or neglect toward the child or any other child or adult.” Id. § 36-1-

113(i)(1)(N). The juvenile court found that Father committed severe child abuse against

William when he kicked Mother in the stomach. Like the trial court, we give significant

weight to this factor.

Factor O considers “[w]hether the parent has ever provided safe and stable care for

the child or any other child.” Id. § 36-1-113(i)(1)(O). Father had never provided care for

another child or William. Although Father was employed during the pendency of this case,

he failed to make consistent child support payments. See id. § 36-1-113(i)(1)(S) (“Whether

the parent has consistently provided more than token financial support for the child.”).

Notably, as the trial court found, he did not start making child support payments until

shortly before the termination hearing.

The remaining factors do not weigh in favor of or against termination. Thus, based

on the foregoing, we conclude that clear and convincing evidence establishes that

termination of Father’s parental rights is in the child’s best interest.

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CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against

the appellant, Joseph C., for which execution may issue if necessary.

/s/ Andy D. Bennett

ANDY D. BENNETT, JUDGE

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