Tennessee Divorce Attorney Blog

In In Re: Taylor BW, and Ashley NW, No. E2011-00352-COA-R3-PT (Tenn. Ct. App. Oct. 28, 2011), the Tennessee Court of Appeals reiterated that Tennessee adoption attorneys must show trial courts that to terminate parental rights, the best interests of the children rather than the best interests of the parents are served.

In this case, the Father and his new wife filed a Petition to Terminate Parental Rights and a Petition for Adoption by a Step-Parent. Mother had been incarcerated for attempting to kill Father. After a hearing, the court found that Father proved grounds for termination based on Mother's incarceration and that termination was in the best interest of the children. The court noted that the youngest child did not have a meaningful relationship with Mother and the children feared Mother may hurt them.

Mother filed a Motion to Alter and Amend. Upon reconsideration, the trial court altered the original order finding Father did not carry his burden. The court looked at the fact that Father continued to keep Mother involved and that Mother did everything she could while she was incarcerated.

The Tennessee Court of Appeals found the trial court erred by looking at Mother's rights. In a termination case, the court must first find grounds for termination exist under Tenn. Code Ann. 36-1-113(g). Then the court must assess whether the best interest of the children is served by terminating parental rights. In doing so the court must look at what effect termination of parental rights would have on the children.

After assessing the facts against the best interest factors found in Tenn. Code Ann. 36-1-113(i), the Court of Appeals found the trial court's first ruling was supported by clear and convincing evidence. The Court of Appeals focused on the fact the children feared Mother, had not had a meaningful relationship with her, and did not wish to visit her. Thus, the Court of Appeals reinstated the trial court's original order.

One parent cannot terminate the parental rights of the other parent in Tennessee. Under Tennessee law, a biological parent does not have standing to pursue termination of the other parent's parental rights. See Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004); In the Matter of: Shelby L.B., No. M2010-00879-COA-R9-PT (Tenn. Ct. App. March 31, 2011).

In Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004), the Tennessee Supreme Court held that a parent did not have standing to file a petition for termination. Mother and Father were never married. Mother filed a petition to terminate the parental rights of Father based on his imprisonment. There was no pending adoption. The trial court granted the Petition. The Tennessee Court of Appeals reversed. The Supreme Court of Tennessee dismissed and vacated the judgments of the lower courts. The Supreme Court held that they lacked subject matter jurisdiction to hear the appeal because Mother lacked standing to file the Petition to Terminate Parental Rights. The Court stated, "Because the legislature specifically designated who may file a petition to terminate parental rights, a court does not have subject matter jurisdiction to hear such a petition unless the party filing the petition has standing. . . . Tennessee Code Annotated section 36-1-113(b) does not include the parent of a child as one of the persons or entities with standing to file a petition to terminate parental rights." Osborn, 172 S.W.39 at 740. Tennessee Code Annotated 36-1-113(b) states:

(b) The prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child's guardian ad litem, or the department shall have standing to file a petition pursuant to this part or title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child. The prospective adoptive parents, including extended family members caring for a related child, shall have standing to request termination of parental or guardianship rights in the adoption petition filed by them pursuant to this part.

Why can't a parent terminate the other parent's parental rights? The Court goes on to explain the public policy reason for the legislature's decision to omit a child's parent from those who have standing to terminate parental rights. "The termination of a parent's parental rights outside the context of a prospective adoption would deny the child the support of two parents." Osborn, 172 S.W.39 at 740.

While a parent cannot terminate the other parent's parental rights alone, the parent may terminate the rights by joining in a petition for a step-parent adoption. If you are a biological parent who wants to pursue your husband or wife adopting your child please contact our office for a free consultation.

The case of In Re: Natalie R. C., No. E2011-01185-COA-R3-PT (Tenn. Ct. App. Oct. 18, 2011), involved the Father's appeal of the trial court's termination of his parental rights. He argued that the petition to terminate his rights was defective. The Maternal Grandmother and custodian of the minor child filed a petition to terminate the parental rights of Father. The trial court terminated Father's parental rights. The Tennessee Court of Appeals vacated and remanded.

Grandmother petitioned and obtained custody of the minor child in 2010 after Mother passed away. Father had been in and out of prison and had not visited with the child. Later in 2010, Grandmother filed a petition to terminate Father's parental rights for failure to pay child support and failure to visit. She amended the petition to allege Father had not paid child support or engaged in meaningful visitation after his release from prison in September 2011.

Grandmother's petition did not include four (4) technical items required by law. First, the petition lacked the notice requirement of Tenn. R. Civ. P. 9A. Second, the petition did not state the putative father registry had been consulted. Third, the petition failed to list the child's statistical information including the child's present and past addresses. Fourth, the petition did not state that the termination of Father's parental rights would be forever severed as required by Tenn. Code Ann. § 36-1-113(d)(3)(C). After a hearing, the trial court terminated the Father's parental rights for non-payment of child support and not visiting the child.

Father appealed, in part, on the basis that Grandmother's petition was defective. Grandmother argued that the petition sufficiently complied with the law despite the omissions. The Tennessee Court of Appeals held that the omissions made the petition defective due to the number of omissions. Although these were technical omissions, the Court was not going to overlook them in the context of termination of parental rights. The Court pointed out that the termination of parental rights is a grave and serious matter involving one of the oldest fundamental liberties.

However, the Court did not dismiss the Petition. Instead, the Court remanded the case to allow Grandmother the chance to amend her petition. Interestingly, the court noted in dicta that if Grandmother had one omission alone, the court may have found harmless error.

In Re: Shyronne D.H, No. W2011-00328-COA-R3-PT, 2011 WL 2651097 (Tenn.Ct.App. July 7, 2011) has further established the limits of res judicata in Tennessee courts.

On October 14, 2008, the Criminal Court of Shelby County indicted Mother on one count of aggravated child neglect or endangerment and one count of aggravated child abuse of a child under eight years of age. The Department of Children's Services (DCS) placed Mother's children in foster care while Mother was incarcerated. DCS subsequently petitioned to the juvenile court, who ruled that the children were not only dependent and neglected but were also victims of severe child abuse. Consequently, the juvenile court ordered the children to remain in DCS's custody and that Mother could have no contact with them. Mother appealed the juvenile court's decision to the Shelby County Circuit Court.

The circuit court judge upheld the juvenile court's decision, basing the ruling on permanent mental and physical damage that mother inflicted on one of her children. The day after the circuit court's ruling, DCS also petitioned to terminate Mother's parental rights in a different circuit court, introducing the ruling made the previous day that Mother's children were dependent, neglected, and severely abused. By introducing this ruling, DCS sought to keep the issue of whether Mother committed severe child abuse from being relitigated under res judicata. Since the dependency and neglect order was actually signed on the same day that the parental termination proceeding began, Mother argued that res judicata did not apply because it could still be appealed or revised within thirty days of the order's entry. The court disagreed, deciding that res judicata did, in fact, apply. The court then ruled that Mother's parental rights should be terminated.

Mother appealed to the Tennessee Court of Appeals, who reversed the circuit court's decision. According to the appellate court, res judicata should not have applied to the instant case. While a minority view, in Tennessee res judicata cannot be applied until all appellate remedies have been used. In other words, a judgment is not final if an appeal is still pending. This is different from most other jurisdictions who rule that even if an appeal is taken up or pending it does not affect the finality of a judgment for res judicata purposes. If Mother had either denied her permission to appeal or failed to appeal the court would have come to a different outcome; but such was not the case here.

Because of the trial court's misapplication of res judicata, the appellate court reversed the trial court's decision to terminate since Mother did not have an opportunity to assert a defense. Since Tennessee courts "place decrees forever terminating parental rights in the category of cases in which the state may not bolt the door to equal justice," it was necessary for the trial court to allow Mother to fully litigate whether she committed severe child abuse sufficient to provide grounds to terminate her parental rights.

In order to terminate a parent's parental rights, a court must find that grounds to terminate exist and that termination is in the best interest of the child. A recent Tennessee Attorney General opinion addressed the issue of whether Tennessee Code Annotated §36-1-113(g)(6) can be used as grounds to terminate parental rights when the parent has already served his sentence and been released. The statute provides grounds to terminate parental rights when the parent has been confined in a correctional or detention facility under a sentence of ten or more years, and the child is under eight years of age when the sentence is entered by the court.

The opinion shows that the statute can be used to terminate even if the parent has already served his sentence and been released. The opinion relied on a Tennessee Court of Appeals case where the Court held that the statute applies regardless of whether the parent is incarcerated or has already been released. In the Matter of D.M., 2009 WL 2461199 (Tenn. Ct. App. 2009). The Court noted that the "clear language of this statute does not contain limiting language requiring the parent actually to be incarcerated when the termination petition is filed."

Parental rights may be terminated even if the parent is no longer incarcerated or served less than ten years in confinement. So, if you have been sentenced to serve ten or more years in a correctional or detention facility, the court can find grounds to terminate your parental rights. The court would then conduct a best interest analysis to determine whether terminating your parental rights would be in the best interest of the child.

In Tennessee, the parental rights of both parents must be terminated before an unrelated individual or non-stepparent may adopt. In a recent Tennessee Court of Appeals case, the Court upheld the trial court's ruling that the unrelated petitioner lacked standing to terminate the biological father's parental rights while the biological mother retained her parental rights. In re Shelby L.B., 2011 WL 1225567, (Tenn. Ct. App. March 31, 2011). In Shelby, the petitioner was a friend of the biological mother, but the two were not married, so legally he was considered a stranger to the child as he was not a stepparent. Because the petitioner was a legal stranger to the child, he lacked standing to petition for termination of the biological father's parental rights, and the trial court was correct in dismissing his petition.

The petitioner argued that he was a potential adoptive parent and therefore had standing to bring the petition to terminate. The Court disagreed. The Court determined that in order to be a potential adoptive parent, one must not only have the intention or desire to adopt, but must also have the legal capacity to do so. Because the petitioner lacked standing to terminate, he did not have the legal capacity to adopt and was not considered a potential adoptive parent.

A key consideration in the Court's determination was the fact that terminating the biological father's rights would deprive the child of another adult who had responsibilities to her. Once parental rights are terminated, the obligation of support is eliminated, so the father would no longer be required to support the child. The Court saw no reason to allow an unrelated individual to deny the child of the support of two parents.

The only situation where a biological parent can join in a petition in an adoption without automatically surrendering his or her own rights is where a stepparent is petitioning to terminate the parental rights of the other parent. So, if the petitioner and the biological mother in Shelby had been married, he would have had standing to file the petition, and she could have joined in the petition without surrendering her rights.

In a recent Tennessee Court of Appeals case, the Court reversed a Juvenile Court's termination of parental rights based on DCS's failure to provide reasonable efforts to reunite the family in light of the father's addiction to methamphetamine. In re April F., 2010 WL 4746245, (Tenn. Ct. App. Nov. 22, 2010). In Tennessee termination cases, the Department of Children's Services is required to show by clear and convincing evidence that it made reasonable efforts to help the parents address their issues and reunite the family.

In this case, the Juvenile Court awarded the termination of parental rights on the basis of persistence of conditions necessitating removal and substantial noncompliance with the permanency plan. These grounds trigger a requirement of reasonable efforts by DCS. When determining reasonableness, the Court looks to the reasons for separating the parents from their children, the parents' mental and physical capabilities, the resources available to parents, the parents' efforts to remedy the conditions that led to removal, and the closeness of the fit between the conditions that led to the children's removal, the contents of the permanency plan, and DCS's efforts.

Here, DCS expected the Father to manage his own recovery. DCS did not provide the Father with a list of treatment services or counseling options, and no one from DCS ensured that the Father obtained treatment after he elected to enter a rehabilitation center. The Court held that DCS did not meet their burden. DCS has an "affirmative duty to help a drug-addicted parent become drug free, even if the parent does not ask for help." Further, the Court stated that DCS must take reasonable steps to address the parents' issues and prevent termination when possible.

This case shows that an affidavit from DCS saying that they exercised reasonable efforts will not always be enough. When the adequacy of DCS's efforts is in dispute, the Department must prove that it did in fact provide reasonable efforts.

When a child is born, its natural parents automatically have certain rights and responsibilities to that child. After a court terminates one's parental rights, the legal parent-child relationship is permanently severed, and the parent no longer has any rights or duties with regard to the child. There are several grounds a court can use to terminate parental rights in Tennessee. These grounds are set forth in Tennessee Code Annotated §§36-1-113(g)-(h).

Grounds include:
Abandonment
Substantial noncompliance with permanency plan
Persistence of conditions necessitating the removal of the child from the home after six months
Severe child abuse
Parent imprisoned under a sentence of ten or more years and child is under the age of eight
Parent convicted or found civilly liable for the wrongful death of the child's other parent
Mental incompetence

When termination is based on abandonment, noncompliance with permanency plan, or persistence of conditions, the Department of Children's Services must show by clear and convincing evidence that it made "reasonable efforts" to keep the family together. If defense counsel can effectively argue that the Department of Children's Services failed to provide reasonable efforts, the termination petition will be vacated.

When considering termination, a court must find by clear and convincing evidence that grounds for termination exist and that termination is in the best interest of the child. At the heart of these proceedings is the ultimate goal of ensuring that the child has a safe and stable environment to grow up in.