                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       April 18, 2013 Session

                                IN THE MATTER OF: LEVI D.

                 Direct Appeal from the Juvenile Court for Madison County
                           No. 49-43,288    Christy Little, Judge


                      No. W2012-00005-COA-R3-PT - Filed May 1, 2013


This is a termination of parental rights case. The trial court concluded that it was in the best
interests of the child to terminate Mother’s parental rights on the grounds that Mother was
incarcerated under a sentence of more than 10 years and her child was under the age of eight
at time of sentencing, see Tenn. Code Ann. § 36-1-113(g)(6), and that Mother was convicted
of the intentional and wrongful death of the child's other parent, see Tenn. Code Ann. § 36-1-
113(g)(7). Mother appeals. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Molly D.

Lanis L. Karnes, Jackson, Tennessee, Guardian Ad Litem, Petitioner/Appellee.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
and Jordan Scott, Assistant Attorney General, for the Attorney General for the State of
Tennessee.

                                   MEMORANDUM OPINION 1

       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
                                                                                               (continued...)
                                       I. Background

        The facts in this matter are undisputed. Molly D. (“Mother”) and Chico D. (“Father”)
are the parents of Levi, born in April, 2005. On April 30, 2010, the Criminal Court of
Madison County entered a judgment pursuant to a guilty plea by Mother sentencing her to
fifteen (15) years incarceration for facilitating the murder of Father, tampering with evidence,
and filing a false police report. Thereafter, on December 29, 2010, Levi’s guardian ad litem
(“GAL”) petitioned to terminate Mother’s parental rights. The GAL alleged, among other
things, that Mother’s parental rights should be terminated pursuant to Tennessee Code
Annotated section 36-1-113(g)(6) because Mother was incarcerated under a sentence of more
than ten (10) years and Levi was under the age of eight at the time of sentencing. In
response, Mother filed an answer challenging the constitutionality of Tennessee Code
Annotated section 36-1-113(g)(6) as violative of due process since Mother allegedly did not
know, and her criminal defense attorney failed to inform her, that her parental rights could
be terminated if she entered a guilty plea. Mother further argued that the GAL’s petition
failed to include the necessary language required by Tennessee Code Annotated section
36-1-113(d)(3)(C).

        On May 17, 2011, the trial court conducted a hearing on the GAL’s petition to
terminate Mother’s parental rights. At the hearing, the GAL made an oral motion to amend
the termination petition to include the ground for termination that Mother was convicted of
the intentional and wrongful death of Father pursuant to Tennessee Code Annotated section
36-1-113(g)(7). After the hearing, the trial court concluded that Tennessee Code Annotated
section 36-1-113(g)(6) was constitutional; that the language of the GAL’s petition was not
deficient; that clear and convincing evidence existed to terminate Mother’s parental rights
pursuant to Tennessee Code Annotated section 36-1-113(g)(6) and section 36-1-113(g)(7);
and that the evidence presented clearly and convincingly established that it was in the Levi’s
best interest to terminate Mother’s parental rights. Mother timely filed a notice of appeal to
this Court.

                                    II. Issues Presented

       Mother presents the following issues, as restated, for our review:

       (1)    Whether the trial court erred in holding that Tennessee Code Annotated


       1
        (...continued)
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.


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              section 36-1-113(g)(6) was constitutional,

       (2)    Whether the trial court erred in concluding that clear and convincing
              evidence existed to terminate Mother’s parental rights pursuant to
              Tennessee Code Annotated section 36-1-113(g)(6),

       (3)    Whether the trial court erred by considering Tennessee Code Annotated
              section 36-1-113(g)(7) as a ground for termination of Mother’s parental
              rights when it was not included in the termination petition,

       (4)    Whether the trial court erred in concluding that clear and convincing
              evidence existed to terminate Mother’s parental rights pursuant to
              Tennessee Code Annotated section 36-1-113(g)(7), and

       (5)    Whether the trial court erred by refusing to dismiss the termination
              petition when it did not include the statutory language found in
              Tennessee Code Annotated section 36-1-113(d)(3)(C)(i)-(iii).

                                 III. Standard of Review

        We review a trial court’s findings of fact de novo upon the record, according a
presumption of correctness to the findings unless a preponderance of the evidence is to the
contrary. Tenn. R. App. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citation
omitted). No presumption of correctness attaches to a trial court's conclusions of law. Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000) (citation omitted). We
will not reevaluate the determinations of a trial court based on an assessment of credibility
unless clear and convincing evidence is to the contrary. In re M.L.D., 182 S.W.3d 890, 894
(Tenn. Ct. App. 2005) (citation omitted). Furthermore, where the trial court has not made
a specific finding of fact, we review the record de novo. In re Valentine, 79 S.W.3d at 546
(citation omitted).

        Tennessee Code Annotated section 36–1–113 governs the termination of parental
rights. This provision of 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.

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Tenn. Code Ann. § 36–1–113(c)(1), (2) (2010). This two-step analysis requires appellate
courts to consider “whether the trial court’s findings, made under a clear and convincing
standard, are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d
528, 530 (Tenn. 2006). “Although the ‘clear and convincing evidence’ standard is more
exacting than the ‘preponderance of the evidence’ standard, it does not require the certainty
demanded by the ‘beyond a reasonable doubt’ standard.”                In re M.A.B., No.
W2007–00453–COA–R3–PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007)
(citation omitted). “Clear and convincing evidence is evidence that eliminates any
substantial doubt and that produces in the fact-finder’s mind a firm conviction as to the
truth.” Id. (citation omitted).

       The heightened burden of proof in parental termination cases requires us to distinguish
between the trial court’s findings with respect to specific facts and the “combined weight of
these facts.” In Re: Michael C. M., No. W2010–01511–COA–R3–PT, 2010 WL 4366070,
at *2 (Tenn. Ct. App. Nov. 5, 2010) (quoting In Re: M.J.B ., 140 S.W.3d 643, 654 n.35
(Tenn. Ct. App. 2004)). Although we presume the trial court’s specific findings of fact to
be correct if they are 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.” Id.

                                         IV. Analysis

                        A. Failure to Notify the Attorney General

        We begin our analysis by addressing Mother’s constitutional challenge of Tennessee
Code Annotated section 36-1-113(g)(6). If a party seeks to attack the constitutionality of a
statute, Tennessee Code Annotated section 29-14-107(b) mandates that “the attorney general
and reporter shall also be served with a copy of the proceeding and be entitled to be heard.”
Further, Rule 24.04 of the Tennessee Rules of Civil Procedure provides, in pertinent part,
“[w]hen the validity of a statute of this state . . . is drawn in question in any action to which
the State or an officer or agency is not a party, the court shall require that notice be given the
Attorney General, specifying the pertinent statute, rule or regulation.” Our review of the
record indicates that Mother failed to notify the Attorney General of her constitutional
challenge during the proceedings below. Although Mother notified the Attorney General of
her constitutional challenge once this matter was on appeal, she admits that she did not notify
the Attorney General of her constitutional challenge at trial. Therefore, in light of Mother’s
failure to timely raise her constitutional challenge at trial, this issue is deemed waived.




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                 B. Grounds for Termination of Mother’s Parental Rights

       The trial court found two grounds for termination of Mother’s parental rights.2 Only
one ground must be proved by clear and convincing evidence to justify termination of
parental rights. Tenn. Code Ann. § 36-1-113(c). Mother argues that the trial court erred in
concluding that clear and convincing evidence existed to terminate her parental rights
pursuant to Tennessee Code Annotated section 36-1-113(g)(6).3 Tennessee Code Annotated
section 36-1-113(g)(6) establishes a ground for termination of parental rights if:

        The parent has been confined in a correctional or detention facility of any type,
        by order of the court as a result of a criminal act, under a sentence of ten (10)
        or more years, and the child is under eight (8) years of age at the time the
        sentence is entered by the court[.]

Tenn. Code Ann. § 36-1-113(g)(6). As indicated in the record by the judgment entered in
the Criminal Court of Madison County, it is undisputed that Mother was incarcerated and
ordered to serve a sentence in excess of ten years for facilitating the murder of Father,
tampering with evidence, and filing a false police report. Moreover, it is undisputed that
Levi was under the age of eight at that time. Accordingly, we agree with the trial court that
clear and convincing evidence exists to terminate Mother’s parental rights pursuant to
Tennessee Code Annotated section 36-1-113(g)(6). In light of our determination that clear
and convincing evidence exists to support this ground for termination of Mother’s parental
rights, we pretermit discussion of the remaining ground for termination.4

      C. Requirements of Tennessee Code Annotated § 36-1-113(d)(3)(C)(i)-(iii)


        2
         Mother does not challenge the trial court’s conclusion that termination of her parental rights was
in the best interests of Levi.
        3
         We note that Mother raises this issue in the Statement of the Issues in her appellate brief, but she
does not argue the issue in the body of her brief. Generally, Mother’s failure would result in a finding by
this Court that she waived the issue on appeal. Tenn. R. App. P. 27(a)(7); Bean v. Bean, 40 S.W.3d 52, 56
(Tenn. Ct. App. 2000). Given the gravity of an action to terminate parental rights, however, we exercise our
discretion to consider the issue. Tenn. R. App. P. 2.
        4
          Tennessee Code Annotated section 36-1-113(g)(7) establishes a ground for termination of parental
rights when “[t]he parent has been convicted of or found civilly liable for the intentional and wrongful death
of the child's other parent or legal guardian.” Assuming that the trial court properly considered this ground,
which we do not find, Mother’s argument would require this Court to construe Tennessee Code Annotated
section 36-1-113(g)(7) to determine whether the facilitation of murder was intended by our legislature to be
included within the above quoted language. Because any discussion of this ground would not affect the
outcome of this matter, the issue is pretermitted.

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       Finally, we address Mother’s argument that the trial court erred by refusing to dismiss
the termination petition when it did not include the statutory language found in Tennessee
Code Annotated section 36-1-113(d)(3)(C)(i)-(iii). This provision of the Code provides:

       (C) The petition to terminate, or the adoption petition that seeks to terminate
       parental rights, shall state that:
               (i) The petition or request for termination in the adoption petition shall
       have the effect of forever severing all of the rights, responsibilities, and
       obligations of the parent(s) or guardian(s) to the child who is the subject of the
       order, and of the child to those parent(s) or guardian(s);
               (ii) The child will be placed in the guardianship of other person, persons
       or public or private agencies who, or that, as the case may be, shall have the
       right to adopt the child, or to place the child for adoption and to consent to the
       child's adoption; and
               (iii) The parent or guardian shall have no further right to notice of
       proceedings for the adoption of the child by other persons and that the parent
       or guardian shall have no right to object to the child's adoption or thereafter,
       at any time, to have any relationship, legal or otherwise, with the child.

Tenn. Code Ann. § 36-1-113(d)(3)(C)(i)-(iii).

       We addressed a similar situation in State v. Whited, No. M2000-03213-COA-R3-JV,
2001 WL 1386095 (Tenn. Ct. App. Nov. 8, 2001). In Whited, the appellant argued that the
petition to terminate her parental rights was fatally defective because it failed to state the
requirements of Tennessee Code Annotated section 36-1-113(d)(3)(C). Id. at *7. This Court
concluded, however, that the petition was not fatally defective because the petition, “[w]hile
not explicitly citing the statute,” set out the content of the legislation by stating:

       That upon hearing, the Court enter a decree forever terminating all of the
       parental rights which Respondents have to [the child] . . . ; providing that
       Respondents shall have no further right to notice of proceedings for the
       adoption of the child, shall have no right to object to the child’s adoption, and
       shall have no relationship, legal or otherwise, with the child; and awarding the
       complete custody, control and guardianship of the child to the State of
       Tennessee, Department of Children’s Services, with the right to place him for
       adoption and to consent to such adoption in loco parentis.

Id.

       The GAL argues that, as in Whited, the termination petition in this matter sufficiently

                                              -6-
sets out the content of Tennessee Code Annotated section 36-1-113(d)(3)(C).               The
termination petition filed by the GAL contains the following language:

       There are no other such rights, which must be terminated before the child can
       be made available for adoption.

       ....

       The minor child is in a family home that wants to adopt them [sic]. . . .

       ....

       Those [sic] upon the hearing of this cause, the Court find on the basis of clear
       and convincing evidence grounds for termination of parental rights of the
       Respondent, and enter a decree forever terminating all Respondent's parental
       rights with respect to the minor child on any or all of the grounds pleaded
       herein.

       That pursuant to T.C.A. § 36-1-116(f)(3), upon termination of all Respondent's
       parental rights, this Court issue an Order placing the child in the sole
       guardianship of the Petitioner.

       Upon review of the record, we conclude that the petition in this case sufficiently put
Mother on notice of the effect of the proceedings to terminate her parental rights. Although
the termination petition does not mirror the exact language of Tennessee Code Annotated
section 36-1-113(d)(3)(C), it clearly provides that, if granted, Mother’s parental rights would
be terminated, that Levi’s current custodians wanted to adopt him upon conclusion of the
termination proceedings, and that Levi would be placed in the legal and physical custody of
someone other than Mother. Therefore, we agree with the trial court’s conclusion that the
language of the termination petition was not deficient.

                                       V. Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Molly D., for which execution may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE

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