In Re: Anna S. ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 21, 2010 Session
IN RE: ANNA S.
Appeal from the Circuit Court for Washington County
No. 27693 Thomas J. Seeley, Jr., Judge
No. E2009-02664-COA-R3-PT - FILED MAY 6, 2010
This is an appeal from the Trial Court’s refusal to terminate the parental rights of Rickie T.
(“Father”) to his one year old daughter, Anna S. (the “Child”). In June 2008, Rebecca S.
(“Mother”) became pregnant with the Child. Several months before the Child was born,
Mother terminated all communication with Father, notwithstanding Father’s numerous
attempts to remain in contact with Mother. Shortly after Mother gave birth, she saw Father’s
sister at a store and told her that she, i.e. Mother, had suffered a miscarriage. In reality,
Mother had given the Child up for adoption through Bethany Christian Services of East
Tennessee (“Bethany Christian”). Mother also had lied to Bethany Christian and, because
of this deception, Bethany Christian was unaware of Father’s true identity. Father learned
that Mother had given birth to the Child after reading a Notice in the local newspaper stating
that Bethany Christian had filed a petition to terminate parental rights and that his parental
rights were about to be terminated. Father immediately notified Bethany Christian of his
existence and retained counsel. Based on stipulated facts, Bethany Christian and Father filed
competing motions for summary judgment. The Trial Court granted Father’s motion after
finding that there was no clear and convincing evidence of grounds to terminate his parental
rights. Bethany Christian appeals, and we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of
the Circuit Court Affirmed; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.
Stewart M. Crane, Loudon, Tennessee, for the Appellant, Bethany Christian Services of East
Tennessee.
Timothy W. Hudson, Bristol, Tennessee, for the Appellee, Rickie T.
OPINION
Background
The relevant underlying facts in this parental rights termination case are
undisputed. The parties stipulated to the pertinent facts and agreed that the stipulation
contained all of the information necessary for the Trial Court to determine if grounds existed
to terminate Father’s parental rights. Since all of the necessary facts were presented to the
Trial Court by stipulation, both Bethany Christian and Father filed motions for summary
judgment claiming entitlement to a judgment based on the undisputed stipulated facts. Thus,
while the parties agreed that summary judgment was appropriate, they disagreed as to which
party was entitled to that judgment. The stipulation provides as follows 1 :
Mother and Father met in May 2008, began dating, and
were with each other nearly every day until Mother left the
relationship within a few days before August 20, 2008. Mother
and Father conceived a child in late June 2008. In July 2008,
Mother thought she might be pregnant and told Father, who then
purchased two or three home pregnancy tests. Mother
performed the tests, and they were positive.
Father knew of the results of the home pregnancy tests.
Father was happy with the news that Mother was pregnant,
wanted to be a father, and shared those feelings with Mother.
They discussed marriage.
As a result of her relationship with Father, Mother was a
frequent visitor in the home of Father’s mother, Vickie H., who
lives [in Sullivan County]. Mother also regularly saw and
became friends with Father’s sister, Dawn D.
In July, 2008, Vickie H. suggested to Mother that she
confirm her pregnancy with testing at the Sullivan County
Health Department. Mother took a pregnancy test at the
Sullivan County Health Department on July 21, 2008. The
1
We have edited the stipulation to delete the paragraph numbers and combine several shorter
paragraphs. In addition, we have changed the references in the stipulations to refer to the parents as
“Mother” and “Father” and used the initials instead of the full last names when referring to relatives of
Mother and Father.
-2-
results of the pregnancy test . . . showed that Mother was
pregnant. . . . The Sullivan County Health Department
estimated that Mother’s child would be born approximately
March 10, 2009. Mother showed Vickie H. the report of the
results of the pregnancy test . . . and Father saw the report on
July 21 or 22, 2008. Father and his family were aware of the
estimated due date of the Child.
[In June and July of 2008,] Father told members of his
family, co-workers, Mother’s mother, and his friends that
Mother was pregnant, and that he was the father of the Child.
Father never believed that anyone other than he might be the
father of [the] Child.
Within a few days prior to August 20, 2008, Mother
abruptly left her relationship with Father, and cut off all
communication with him. Father wrote a letter to Mother in
August or September of 2008, a copy of which is attached . . .
as Exhibit B. Father claimed to be the father of the Child.
Father wrote another letter to Mother before he wrote Exhibit B,
in which he called Mother a “cheating whore” and told her that
she was not fit to marry. . . .2 Father wrote five (5) or six (6)
letters to Mother in addition to Exhibits B, C, D, and E . . . , but
he did not retain copies of them. . . .
In September, 2008, Mother told Father that she did not
want any further contact with him, to leave her alone, and that
if she needed anything she would let him know. Despite
Mother’s wishes, Father continued to write her letters and
attempted to call her. When Father tried to talk to her at her
work in October 2008, she told him he was stalking her and
again told him not to contact her. Mother says she received 10-
11 letters from Father from August through November 2008,
and phone calls through December, 2008.
Throughout the remainder of 2008 and in January of
2009, Father placed multiple phone calls to Mother’s house . . .
2
In Exhibit B, Father apologized for what he said in the previous letter and told Mother that he loved
her.
-3-
where she lived with her mother. Mother would not speak with
him or respond in any way to his communications. Mother’s
mother told Father not to call and that Mother did not want to
have any contact with him. A copy of the records of the calls
. . . is attached hereto as Exhibit G. Father says he sent even
more letters and continued to attempt to call Mother through
March, 2009, using the Tracphone he used during the period he
was laid off. Mother denies receiving those additional letters
and phone calls.
Father sent Mother $100.00 in September, 2008. He
claims that he also sent her $100.00 between November 27 and
December 25, 2008. He did not send any more money because
he did not know how the money would be used. Father’s gross
income for calendar year 2008 was Twenty-Two Thousand,
Nine Hundred and Sixteen Dollars and Fifty Cents
($22,916.50). . . .
In December, 2008, Mother began to consider adoption
because she could not support a third child, and there was no
room for another child at her mother’s house. Cindy Hawkins
of Sullivan County Health Department referred her to Bethany
for adoption services.
In December 2008, Father met and conceived a child
with Jessica B. Father and Jessica B. began living together in
nearby Bristol, Virginia, still reside together, and plan to get
married when they have the money for a formal wedding. Their
child, named Kara, was born August 29, 2009, and resides with
them.
For several days before and after the due date of March
10, 2009, Vickie H. contacted the Bristol Regional Medical
Center to see if Mother was there, but the hospital would give
out no information.
On January 28, 2009, Mother contacted Bethany
Christian Services of East Tennessee (“Bethany”), a licensed
child-placing agency, about giving the Child up for adoption.
Mother did not want Father or his family to know of the
-4-
adoption, so she deceived Bethany by not giving Bethany the
correct name of the father or how he might be notified even
though she knew his correct name and where his mother lived.
On February 17, 2009, Mother executed an affidavit at
Bethany’s request. In that affidavit, she intentionally mis-
identified the father and how he could be located because she
did not want Bethany to find Father and have him learn of her
adoption plan. . . . Between February 11, 2009, and March 25,
2009, Julie Ford, an employee of Bethany . . . , used Internet
search engines to search for “Richard T.” and “Ricky B.” She
made seven phone calls in response to the results of those
searches. She did not find Father [because she did not have his
correct name].
Mother gave birth to Anna S. on March 5, 2009 . . . .
Neither Father nor his family was informed of the birth of Anna
S. (the Child). At the Child’s birth, Bethany accepted custody
of [the Child] and placed [her] with prospective adoptive
parents. . . .
On April 10 or 11, 2009, [Father’s sister], Dawn D. saw
Mother at the Wal-Mart. . . . Dawn D. asked about the baby.
They talked about an hour, during which Mother lied to Dawn
D., saying that she had not delivered the child but had
miscarried 4-5 months earlier. She lied to hide the truth from
Father and his family that she had delivered the child and placed
it for adoption with Bethany. The following day, Dawn D. told
Father that she had spoken to Mother at Wal-Mart, and that
Mother told her she had miscarried. Father believed the report
of miscarriage was true. Vickie H. did not believe Mother’s
claim that she had miscarried and expressed her disbelief to her
children . . . .
At all times material to this action, Father did not have a
telephone in his own name. His only telephone was a cellular
phone provided by his employer. He was not allowed to use the
cellular telephone provided by his employer during the period
January 29, 2009 - April 23, 2009, when he was laid off from
his employment. He used a prepaid cellular telephone during
the period when he was laid off.
-5-
On June 8 or 9, 2009, Stewart M. Crane, Attorney for
Bethany, filed a Request for Name and/or Address of Father or
Child Born Out-of-Wedlock (the PFR Request), using [the
correct name of Mother] and “Ricky T.” or “Richard T.” . . . as
possible names of the father, with the Putative Father Registry.
In response to the Request, the Putative Father Registry sent two
Responses (the PFR Responses) to Mr. Crane . . . reporting that
“No person has filed a notice of intent to claim paternity or
acknowledgment of paternity of Anna S. . . .”
On June 19, 2009, Bethany commenced this cause by
filing its Complaint for Termination of Parental Rights, joining
“Ricky T. B. a/k/a Richard T.” and Mother as Defendants.
Mother’s deception caused Bethany to inaccurately allege that
Mother, and therefore Bethany, did not know the true name of
the possible father of the Child. Her deception also caused
Bethany to telephone the wrong male (or males), resulting in
Bethany’s allegation that it “has been unable to locate any
person who will acknowledge being acquainted with Mother.”
In its Complaint, Bethany prayed that [the biological father] “be
given notice of this proceeding by publication of a Non-Resident
Notice in the [local] newspaper of general circulation . . . .” The
Court granted Bethany’s prayer for publication . . . .
On Tuesday, June 30, 2009, [the Notice was published in
the local newspaper.] On that same day, Vickie H.’s husband
read the Notice in the paper. Vickie H. and her husband
informed Father of the Notice that day. The Notice gave Father
his first knowledge that Mother’s statement that she had
miscarried was a lie. Vickie H. called Bethany the evening of
Tuesday, June 30, 2009, but its offices were closed.
Father met with two employees of Bethany at Bethany’s
office . . . on July 1, 2009. He told the employees of Bethany
that he could be the father of . . . [the Child] and that he wanted
a paternity test. The Bethany employees asked him to execute
a Waiver of Interest and Notice to terminate any parental rights
he might have in and to [the Child]. He refused to do so and
contacted counsel. On July 6, 2009, Julie Ford, a birth parent
counselor employed by Bethany, met with Mother to discuss
-6-
Father. Julie Ford informed Mother that her lies could damage
the adoption of [the Child].
Father filed an Answer and Cross-claim for paternity
testing, parentage, and custody in this proceeding on July 15,
2009. Father had never seen the form for filing a Notice of
Intent to Claim Paternity or Acknowledgment of Paternity of a
Child with the Tennessee Putative Father Registry (PFR) until
his deposition in this cause on October 2, 2009. He did not file
a Notice of Intent to Claim Paternity or Acknowledgment of
Paternity of the Child with the PFR, and had never heard of the
PFR until his deposition. . . .
Father has not executed a Voluntary Acknowledgment
of Paternity pursuant to the provisions of Tenn. Code Ann.
§§ 24-7-115, 68-2-203, 68-2-302, and 68-2-305 . . . . He has not
signed such a sworn acknowledgment pursuant to the law of any
other state, territory, or foreign country.
Father and Mother have never been married, have never
attempted to marry, and Father . . . [has not] adopted [the Child].
At all times material to this action, Father knew [where] Mother
was residing . . . . At the time of the filing of the Complaint for
Termination of Parental Rights in this cause, Father had not:
(a) commenced a proceeding for the determination of the
parentage of the Child,
(b) been adjudicated by a court of Tennessee or any other
state or territory of the United States to be the father of
the Child,
(c) been recorded on the Child’s birth certificate as the
Child’s father,
(d) openly lived with the Child,
(e) entered into a foster care plan acknowledging
paternity of the Child,
-7-
(f) paid any part of the medical expenses arising from the
birth of the Child,
(g) paid any monies toward the support of Mother or the
Child during the last four months Mother was pregnant
with the Child, other than $100.00 between November 27
and December 25, 2008, which he claims to have paid,
but which Mother denies receiving,
(h) paid any monies toward the support of the Child or
Mother since the birth of the Child, [or]
(i) maintained regular visitation or other contact with the
Child.
After filing his Answer and Cross-claim, Father asked
Bethany to permit him to visit [the Child]. Bethany denied his
request pending entry of an Order of Parentage of the Child.
Father and the Child submitted DNA samples for
paternity testing . . . for which testing Father paid. By Affidavit
dated September 21, 2009, [the DNA test results showed] a
likelihood of 99.994% that Father is the biological father of [the
Child]. . . .3
During the period of Mother’s pregnancy, Father resided
[at three different addresses.] Father did not notify Mother
when he moved from [the second location]. . . .
In 2009, Father was employed . . . from January 1, 2009 -
June 19, 2009, excluding the period from January 29, 2009 -
April 23, 2009, during which period he was laid off because of
lack of business on the part of his employer. . . . Father received
unemployment benefits in the amount of $231.00 per week from
February 7, 2009, until April 18, 2009. . . .
3
An Order of Parentage was entered on October 29, 2009, and Father was given very limited
temporary visitation at that time.
-8-
At all times pertinent, Mother knew that Father could be
located through his mother or his employment . . . where his
mother and other family members worked, but she hid this
information from Bethany. (footnotes added)
Based on the stipulated facts, the Trial Court concluded that clear and
convincing evidence of grounds to terminate Father’s parental rights had not been presented.
The Trial Court, therefore, granted Father’s motion for summary judgment. According to
the Trial Court:
Bethany Christian contends that Father abandoned the
child (T.C.A. §§ 36-1-102(1)(A)(iii) and 36-1-113(g)(1)), failed
to pay any prenatal, natal, and postnatal birth expenses (T.C.A.
§ 36-1-113(g)(9)(A)(i)), and failed to file a petition to establish
paternity within 30 days of “notice of alleged paternity” by the
mother or file a claim of paternity with the putative father
registry prior to or within 30 days of the birth of the child
(T.C.A. §§ 36-1-113(g)(9)(A)(vi) and 36-2-318(e)(3)).
The grounds for termination must be proved by “clear
and convincing evidence.” T.C.A. § 36-1-113(c)(1). . . . Both
the grounds for abandonment and failure to pay birth expenses
incorporate the element of intent. Abandonment in this case
means that Father either “willfully failed to visit or willfully
failed to make reasonable payments toward the support of the
mother” in the four (4) months prior to the birth of the child.
T.C.A. § 36-1-102(1)(A)(iii). The failure to pay birth expenses
“without good cause or excuse” must also be proven by clear
and convincing evidence. T.C.A. § 36-1-113(g)(9)(A)(i).
* * *
Based on the . . . [stipulated] facts and especially the deceitful
and mendacious conduct of Mother, this Court is constrained to
find that there is not clear and convincing evidence that Father
willfully failed to visit or make reasonable payment to Mother
in the four (4) months prior to the birth of the child. Father did
send limited monies to Mother. . . . Although such payments
would not normally be considered reasonable, his willingness to
pay was thwarted by Mother’s refusal to acknowledge his letters
-9-
and his telephone calls . . . , all of which resulted in her accusing
him of stalking and telling him to quit trying to contact her.
Notwithstanding that, Father continued to call her through
January 2009, but Mother would not talk to him. Father’s
immediate action in going to Bethany Christian’s office two
days after the first newspaper publication notice and shortly
thereafter hiring counsel and filing his Answer and Counter-
claim claiming to be the father belie any willful intent to
abandon on his part. Further, Mother’s conduct in refusing
contact with Father, lying about who was the father of the child
to Bethany Christian, and stating to Father’s sister that she had
miscarried, would “excuse” Father’s not paying birth expenses.
There is not, under these circumstances, clear and convincing
evidence that Father failed, “without good cause or excuse” to
pay a reasonable share of the child’s birth expenses.
Plaintiff lastly contends that Father’s rights should be
terminated because, although he knew [Mother] was pregnant
with his child, he did not file with the putative father registry
before the child’s birth or otherwise seek to declare paternity in
a timely fashion after notice of the alleged paternity. T.C.A.
§ 36-1-113(g)(9)(A)(vi). There is no question that, upon
learning of the child’s birth, Father immediately notified
Bethany Christian claiming paternity and intervened in this
termination proceeding. . . . This Child’s live birth was
concealed from Father by Mother. Father filed with this Court
well within thirty (30) days after he had notice of the live birth
of this Child. His notice came from the newspaper publication.
The Court thus finds that there is not clear and
convincing evidence to find that Father did not file to establish
paternity of the child within thirty (30) days of notice that he
was the father of the child born.
Because the Trial Court concluded that none of the alleged grounds to
terminate Father’s parental rights had been proven by clear and convincing evidence, it
entered summary judgment for Father and pretermitted the issue of whether terminating
Father’s parental rights was in the Child’s best interest. Bethany Christian appeals
-10-
challenging the Trial Court’s determination that grounds to terminate Father’s parental rights
had not been proven by clear and convincing evidence.4
Discussion
As stated previously, the parties are in agreement that the Trial Court was
presented with sufficient stipulated evidence to determine if grounds for terminating Father’s
parental rights existed. Our Supreme Court reiterated the standard of review for cases
involving termination of parental rights in In re F.R.R., III, 193 S.W.3d 528 (Tenn. 2006).
According to the Supreme Court:
This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption
of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
parental rights, a trial court must determine by clear and
convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in
the child's best interest. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
reviewing a termination of parental rights, this Court's duty,
then, is to determine whether the trial court's findings, made
under a clear and convincing standard, are supported by a
preponderance of the evidence.
Id. at 530.
Bethany Christian argues that the Trial Court incorrectly applied Tenn. Code
Ann. § 36-1-113(g)(9)(A) which provides, in relevant part, as follows:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection
(g). The following grounds are cumulative and non-exclusive,
4
In its Statement of the Issues, Bethany Christian simply states the issues as being (1) whether the
Trial Court erred when it granted Father’s motion for summary judgment, and (2) whether it erred when it
denied Bethany Christian’s motion for summary judgment. Bethany Christian fails to specify in its Statement
of the Issues exactly what the Trial Court did that Bethany Christian claims was error by the Trial Court in
its granting Father summary judgment.
-11-
so that listing conditions, acts or omissions in one ground does
not prevent them from coming within another ground:
* * *
(9)(A) The parental rights of any person who, at the time of the
filing of a petition to terminate the parental rights of such person
or, if no such petition is filed, at the time of the filing of a
petition to adopt a child, is not the legal parent or guardian of
such child or who is described in § 36-1-117(b) or (c) may also
be terminated based upon any one (1) or more of the following
additional grounds:
(i) The person has failed, without good cause or excuse,
to pay a reasonable share of prenatal, natal, and postnatal
expenses involving the birth of the child in accordance with the
person’s financial means promptly upon the person’s receipt of
notice of the child’s impending birth;
(ii) The person has failed, without good cause or excuse,
to make reasonable and consistent payments for the support of
the child in accordance with the child support guidelines
promulgated by the department pursuant to § 36-5-101;
* * *
(vi) The person has failed to file a petition to establish
paternity of the child within thirty (30) days after notice of
alleged paternity by the child’s mother, or as required in
§ 36-2-318(j), or after making a claim of paternity pursuant to
§ 36-1-117(c)(3) . . . .5
With respect to the grounds alleged in Tenn. Code Ann. § 36-1-113(g)(9)(A)(i)
and (ii), the facts are quite clear that Mother intentionally lied to both Father and Bethany
Christian. Notwithstanding Father’s repeated attempts to stay in contact with Mother during
her pregnancy and to assist her if needed, Father’s attempts were consistently rebuked by
Mother. Because Mother steadfastly refused to have any contact with Father, there was
nothing to indicate to Father that Mother was, yet again, lying when she told his sister that
5
Father does not argue that Tenn. Code Ann. § 36-1-113(g)(9) does not apply to him in this case.
-12-
she had miscarried. Because Mother refused any contact with Father in the months before
the Child was born and because Father had been informed that Mother had miscarried, he
cannot be deemed to have failed “without good cause or excuse” to pay a reasonable share
of Mother’s prenatal, natal, and postnatal expenses. Quite simply, Father was not aware that
there were any such expenses and, in fact, had been deliberately misled into believing that
such expenses did not exist. It is for the very same reason that Father cannot be deemed to
have failed “without good cause or excuse” to make reasonable and consistent child support
payments.6 This is what the Trial Court found, and the evidence does not preponderate
against these findings.
Next, Bethany Christian argues that Father’s parental rights should have been
terminated because Father failed “to file a petition to establish paternity of the child within
thirty (30) days after notice of alleged paternity by the child’s mother . . . .” For purposes of
terminating parental rights, a child is defined as “any person or persons under eighteen (18)
years of age.” Tenn. Code Ann. § 36-1-102(13). We agree with the Trial Court that, for
purposes of this statute, the Legislature contemplated that the thirty days would begin to run
after the father received notice of alleged paternity and that this notice period begins, at the
earliest, when the Father receives notice of the birth of the child. The facts fully support the
Trial Court’s conclusion that Father did not receive this notice until he read the legal notice
in the local newspaper and that he thereafter acted swiftly to protect his rights.7
This is an unfortunate case in many ways. It is unfortunate that, due to
Mother’s blatant and calculated lies, Father has had to retain counsel to protect his
fundamental parental rights. It is unfortunate that, due to Mother’s blatant and calculated
lies, Bethany Christian was deceived into believing that it had done what it needed to do in
order to notify the biological father of the planned adoption. It is unfortunate that, due to
6
In its Statement of the Issues, Bethany Christian does not list as an issue whether Father abandoned
the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) for failure to pay child support. To the extent that
Bethany Christian does attempt to raise this as an issue, we, likewise, conclude that there was no willfulness
on the part of Father not to pay child support and, therefore, he cannot be deemed to have “abandoned” the
Child pursuant to this statutory provision.
7
As quoted previously, Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi) provides that parental rights can
be terminated if “[t]he person has failed to file a petition to establish paternity of the child within thirty (30)
days after notice of alleged paternity by the child’s mother, or as required in § 36-2-318(j), or after making
a claim of paternity pursuant to § 36-1-117(c)(3).” Again, we note that Bethany Christian does not
specifically raise in its Statement of the Issues any issues regarding whether Father complied with Tenn.
Code Ann. §§ 36-2-318(j) or 36-1-117(c)(3), assuming they apply. We therefore consider any such issues
waived. Having said that, we nevertheless point out that Father’s failure to register with the putative father
registry would be excused in this case since he had been incorrectly informed that the child had never been
born.
-13-
Mother’s blatant and calculated lies, the Child has been living with prospective adoptive
parents and forming a bond with them and that relationship must now come to an end
through no fault of the prospective adoptive parents. Because of Mother’s behavior, there
are no true winners in this case.
We conclude that the evidence does not preponderate against the Trial Court’s
findings and ultimate conclusion that there was no clear and convincing evidence to
terminate Father’s parental rights. The judgment of the Trial Court is affirmed.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Circuit Court for Washington County solely for collection of the costs below. Costs on
appeal are taxed to the Appellant, Bethany Christian Services of East Tennessee, and its
surety, for which execution may issue, if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
-14-