In re C.T.S.

156 S.W.3d 18
Court of Appeals of Tennessee·Decided August 16, 2004·Published·Cited by 51 cases

Opinion

OPINION

DAVID R. FARMER, J„

delivered the opinion of the court,

The trial court terminated Father’s parental rights based on Tenn.Code Ann. § 36 — 1—113(g)(6) and Mother’s parental rights based on TenmCode Ann. § 36 — 1— 113(g)(1). Mother and Father appeal. We affirm.

This is a termination of parental rights case. The facts of this case are undisputed. VA.T. (“Mother”) has four biological children.' The two eldest children have not been in Mother’s custody since 1997. The Department of Children’s Services (“DCS”) removed a third child, D.T. from Mother’s custody in 1999, when D.T. was six days old, and placed him in foster care. D.T. tested positive for cocaine at birth, and in 2000 DCS petitioned to terminate Mother’s parental rights to D.T. However, Mother voluntarily surrendered her rights to D.T., and D.T.’s foster parents adopted him in 2001. C.T.S., the child who is the subject of this action, is the half-brother of D.T. C.T.S. currently is in foster care with the same family that adopted D.T. This family also desires to adopt C.T.S.

[21]*21C.T.S. has been in DCS custody almost since birth. He was born February 16, 2001 with cocaine in his system, and Mother has admitted to smoking crack cocaine shortly before the birth. DCS become involved with C.T.S. when the physician attending C.T.S.’s birth contacted it expressing concern that parents were unable to care for the child. In his correspondence with DCS, the attending physician stated that Mother had received no prenatal care during her pregnancy, that she had arrived at the hospital with pain and bleeding caused by the toxic effects of cocaine, that she had been in this condition for as many as 24 hours, and that both she and C.T.S. had tested positive for cocaine. He also stated that Mother was addicted to crack cocaine and that she was “unable to control her own environment much less that of this newborn child.” C.T.S. has been in the care of his foster family since he was 13 days old.

During the course of its investigation, DCS determined there was an outstanding warrant for C.T.S.’s father, W.N.S. (a/k/a N.W.S.; hereinafter, “Father”). Father subsequently was arrested on drug charges. DCS initially placed C.T.S. with his paternal aunt, but removed him to DCS custody on February 21, 2001, after he was left unattended. Shortly thereafter, DCS placed C.T.S. in foster care with the family caring for D.T.

In March 2001, Mother was charged with drug offenses. At the time of her arrest, she was on probation from a 1997 drug offense. Both Mother and Father were convicted of selling cocaine. In November 2001, Father was sentenced to 15 years incarceration. Mother entered a plea of nolo contendere in August 2001, and received a nine year prison sentence.

DCS petitioned for the termination of Mother’s and Father’s parental rights on March 1, 2002. On April 15, 2003, one day before the trial, Father filed a motion for continuance and a motion requesting recu-sal of the trial judge. Mother orally joined Father’s motion for continuance. The trial court denied both motions. By order of May 21, 2003, the trial court terminated Father’s rights based on Tenn.Code Ann. § 36-l-113(g)(6), finding that Father had been incarcerated under a 15 year sentence while C.T.S. was under eight years of age. The trial court additionally found Mother had abandoned C.T.S.; that she had exhibited wanton disregard for C.T.S.’s safety and willfully had placed him in physical danger before his birth; that the circumstances leading to C.T.S.’s removal continued to exist; and that there was little likelihood that C.T.S. could safely be returned in the near future. The trial court also determined that C.T.S. had bonded with his foster family and half brother, that he was well cared for, and that termination of Mother’s and Father’s parental rights was in C.T.S.’s best interest. Mother and Father filed a timely notice of appeal to this Court.

Mother filed a motion to consider post-judgment facts in this Court, which was granted. In her motion, Mother submits that she was paroled on May 21, 2004. She further asserts that, while incarcerated, she completed her G.E.D. and participated in several programs, including a parenting class, a food and nutrition program, and a 12-step serenity program and that she currently lives with her grandmother in Covington, Tennessee.

Issues Presented

Mother and Father present the following issues, as we restate them, for review by this Court:

(1) Whether the trial court properly denied Father’s motion for recusal.
[22]*22(2) Whether the trial court properly denied Father’s and Mother’s motion for continuance.
(3) Whether clear and convincing evidence supports the trial court’s judgment.

Standard of Review

Our standard of review of a trial court sitting without a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise. Tenn. R.App. P. 13(d). However, no presumption of correctness attaches to a trial court’s conclusions on issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R.App. P. 13(d). We review a trial court’s determinations on motions of recusal under an abuse of discretion standard. Caudill v. Foley, 21 S.W.3d 203, 215 (Tenn.Ct.App.1999). The trial court’s determination on whether to grant a motion for continuance is likewise reviewed under an abuse of discretion standard. Knight v. Knight, 11 S.W.3d 898, 905 (Tenn.Ct.App.1999).

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 or 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-l-113(c)(2001). This section also provides the grounds on which parental rights may be terminated. The existence of any statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d 467, 473 (Tenn.Ct.App.2000).

A court’s determination to terminate parental rights must be supported by clear and convincing evidence. Id. at 474.

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In re C.T.S., 156 S.W.3d 18 (Tenn. Ct. App. 2004).

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