In Re Asher S.C. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 17, 2014 Session
IN RE A.S.C.
Appeal from the Circuit Court for Sevier County
No. 2011-A017-II Rex Henry Ogle, Judge
No. E2013-01830-COA-R3-PT-FILED-AUGUST 29, 2014
This is a termination of parental rights case concerning A.S.C. (“the Child”), the son of
A.G.S. (“Mother”) and C.D.T. (“Father”). Mother and Father were never married. Two
years after the Child was born, Mother, as the sole plaintiff, filed a petition to terminate
Father’s parental rights based on his alleged abandonment of the Child. After Mother and
C.R.S. (“Stepfather”) were subsequently married, Mother filed a motion to join Stepfather
and an amended petition to terminate Father’s rights and allow Stepfather to adopt the Child.
Father objected and filed a counterclaim in which he requested that he be designated as the
alternate residential parent and granted traditional visitation rights. After a bench trial, the
court terminated Father’s rights based on its finding, said to be made by clear and convincing
evidence, that multiple forms of abandonment exist. The court further found, also by clear
and convincing evidence, that termination was in the best interest of the Child. Father
appeals. He challenges the four-month period of time used to establish abandonment by
failure to visit or support the Child; the sufficiency of the evidence of grounds for
termination; and the trial court’s best-interest determination. We conclude that the trial court
erred in its calculation of the four-month period for consideration of abandonment pursuant
to Tenn. Code Ann. § 36-1-102(1)(A)(i)(2010). As a result, we vacate the trial court’s
finding of abandonment by failure to provide child support as a ground for termination. In
all other respects, the judgment is affirmed.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified; Case Remanded
C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.
P. Richard Talley, Dandridge, Tennessee, for the appellant, C.D.T.
Heather N. McCoy, Sevierville, Tennessee, for the appellees, A.G.S. and C.R.S.
Jeffrey L. Stern, Sevierville, Tennessee, Guardian ad litem.1
OPINION
I.
In 2008, Mother and Father worked together at the Dixie Stampede, an entertainment
venue in Sevier County. At that time, Mother lived at home with her parents. They dated
only a few times before Mother became pregnant; Mother described their relationship as a
“fling thing.” The Child was born in March 2009.
At trial, Mother testified that when she shared the news of her pregnancy with Father,
he “was not happy and did not speak to [her] for a while.” At one point, Mother said Father
informed her that he and his girlfriend had decided “it would be for the best” if Mother had
an abortion. For his part, Father, then 37,2 testified that it was Mother’s body and that he had
asked her if she wanted to consider adoption or abortion. During the pregnancy, Mother
talked with Father and tried to get him involved but said Father “just didn’t really seem
interested after that.” Mother convinced Father to meet her outside in the parking lot at work
– she wanted to show him photographs of the Child’s ultrasound and let him know the baby
was a boy. She testified that once outside, Father kept her waiting while he stood around
talking with a group of friends. Father never came over, so Mother finally approached him.
Mother said she asked, “[D]on’t you want to see it?” Mother said Father was “kind of like
yeah, whatever, just didn’t care.” While Mother was still pregnant, a co-worker of the
Child’s maternal grandmother offered to hold an informal “mediation” between Mother and
Father to go over both parents’ responsibilities with respect to the Child. Mother testified
that Father was very upset after the mediation – he said “that stuff is not fair . . . , that he
shouldn’t be obligated to do all that type of thing,” and felt he was being “targeted. ” Father
declined to participate in a second mediation. Their interactions led Mother to conclude that
Father had no interest in being involved with the Child.
For his part, Father agreed “there wasn’t a lot of communication with us,” but said he
did talk with Mother at work during the pregnancy. Father said that after Mother decided to
1
The Guardian ad litem adopts the brief and reply brief filed by Father in their entirety. The
Guardian ad litem requests that this Court reverse the order terminating Father’s parental rights.
2
The record does not reflect Mother’s age. At trial, Father agreed that she was “quite younger” than
him.
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have the baby, they talked about going for an ultrasound and he was interested in that. Father
continued: “I can remember multiple times coming up and rubbing her belly, calling him
peanut.” At one point, Mother had to be hospitalized for over a week with pre-term labor.
She said she informed Father, but he did not come to see her and never offered to help with
medical care. Father denied knowing that Mother was hospitalized.
During the pregnancy, the Child’s paternal grandmother, P.S., took Mother shopping
at Babies R Us. Father was supposed to come, but did not. According to Mother, P.S.
bought her a baby stroller, but spent the entire time trying to convince Mother that she should
let Father’s girlfriend be a part of the Child’s life.
Father testified that he learned from his girlfriend that Mother had gone to the hospital
for the birth of the Child. Just after the Child was born, Father went to the hospital to see
him. Mother let Father hold the Child and take pictures. Father had no other visits with the
Child. By that time, Father was unemployed. He did not provide health insurance or any
support for the Child. Mother supported the Child. The Child had health insurance through
TennCare. When the Child was two weeks old, P.S. and her husband visited the Child again.
Mother testified that P.S. took pictures and commented that the Child did not look anything
like Father. At trial, P.S. testified that she and Father had both made efforts to participate in
the Child’s life and to see him. She noted that she had seen the Child at the hospital and two
other times at Mother’s home. She admitted that Mother had never told her she could not
visit the Child, but described her few visits as “uncomfortable” for everyone.
In late 2009, when the Child was some six months old, the Department of Human
Services (“DHS”) brought a child support action against Father. Around the same time,
Father and P.S. saw a family law attorney who provided them with a form parenting plan.
They drove to Mother’s house and P.S. delivered the blank form plan to Mother. After that
visit, P.S. did not visit or ask to visit again. Neither Father nor P.S. disputed Mother’s
testimony that she never told them that they were not welcome to see the Child. Father
acknowledged he never sent the Child anything – no clothes, a birthday card or a Christmas
gift.
Mother, in her sole name, filed a petition to terminate Father’s rights on April 18,
2011. Father responded with a handwritten “note” that asserted he was “contesting this case
against me.”
On June 24, 2011, Mother married Stepfather. On June 27, 2011, Mother and
Stepfather filed a motion to join Stepfather in the pending action and a motion for
permission to file an “Amended Petition to Terminate Parental Rights and for Adoption by
a [Stepparent],” with the Amended Petition attached. On August 31, 2011, Mother moved
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for a default judgment based on Father’s failure to plead or otherwise make a proper defense.
In his September 29, 2011 response, Father filed a counterclaim in which he requested that
he be designated as the Child’s “alternate residential parent” and submitted a proposed
parenting plan providing him with standard visitation every other weekend and one evening
during the alternating weeks. Father objected to the proposed adoption of the Child and
asserted that he would be prejudiced if the court allowed the Amended Petition to be filed
without a hearing on the matter. In August 2012, the parties attended a mediation session.
It was not successful. On October 5, 2012, following a hearing, the trial court entered an
agreed order allowing Mother and Stepfather to file and proceed on the Amended Petition
and joining Stepfather as a party. On March 4, 2013, the Amended Petition was filed.
After her marriage, Mother and the Child moved out of her parents’ home and into a
home with Stepfather. Mother testified to the close relationship between Stepfather and the
Child and the many activities they shared. She described theirs as a “normal father/son
relationship.” They fished together, Stepfather read bedtime stories to the Child and the
Child was excited when Stepfather returned home from work each day. Stepfather’s
grandparents, who live in Jacksboro, are also a part of the Child’s life. In early 2012, Mother
and Stepfather had a child together, another son. At the time of trial, the Child was four and
his half-brother was eleven months. Mother described them as “best buddies.”
Mother testified that, in the beginning, she tried to involve Father in the Child’s life
but to no avail. Now, years later, she was pursuing termination of Father’s rights in trying
to do what she felt was best for the Child.
After the trial, the court terminated Father’s rights to the Child based on its finding
of multiple forms of abandonment. More specifically, the court found that Father willfully
failed to provide child support or visit the Child in the four months immediately preceding
the filing of the original petition to terminate, and that he willfully failed to make reasonable
payments toward Mother’s support in the four months immediately preceding the birth of the
Child. See Tenn. Code Ann. § 36-1-102(1)(A)(i), (iii). Father filed a timely notice of
appeal.
II.
Father presents the following issues as taken verbatim from his brief:
1. Whether, in determining whether Father abandoned the child,
the trial court erred in using the four-month period preceding the
filing of the original Petition.
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2. Whether the trial court erred in terminating Father’s parental
rights on the basis of his failure to pay child support.
3. Whether the trial court erred in terminating Father’s parental
rights on the basis of his failure to visit the child.
4. Whether the trial court erred in terminating Father’s parental
rights on the basis that it was in the best interest of the child.
III.
With respect to parental termination cases, this Court has observed:
It is well established that parents have a fundamental right to
the care, custody, and control of their children. While parental
rights are superior to the claims of other persons and the
government, they are not absolute, and they may be terminated
upon appropriate statutory grounds. A parent’s rights may be
terminated only 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) [t]hat
termination of the parent’s or guardian’s rights is in the best
interest[] of the child.” Both of these elements must be
established by clear and convincing evidence. Evidence
satisfying the clear and convincing evidence standard establishes
that the truth of the facts asserted is highly probable, and
eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.
In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App.
E.S., filed Oct. 4, 2011) (citations omitted).
“As to the trial court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise.” In re M.J.B., 140 S.W.3d 643,
654 (Tenn. Ct. App. 2004); Tenn. R. App. P. 13(d). “We must then determine whether the
facts, as found by the trial court or as supported by the preponderance of the evidence, clearly
and convincingly establish the elements necessary to terminate parental rights.” Id. Great
weight is accorded the trial court’s determinations of witness credibility, which court findings
will not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no
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presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).
On our review, we proceed mindful that only a single ground must be sufficiently proven to
justify termination. In re Audrey S., 182 S.W.3d 838, 862 (Tenn. Ct. App. 2005).
IV.
A.
Father challenges the termination of his parental rights, said termination being
pursuant to Tenn. Code Ann. § 36-1-113(g)(1)(Supp. 2013). That section provides grounds
for termination whenever any of the specified forms of “[a]bandonment by the parent or
guardian, as defined in § 36-1-102, has occurred. In turn, Section 36-1-102 defines
“abandonment,” in relevant part, as follows:
(1) (A) For purposes of terminating the parental or guardian
rights of parent(s) or guardian(s) of a child to that child in order
to make that child available for adoption, “abandonment” means
that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
parental rights of the parent(s) or guardian(s) of the child who
is the subject of the petition for termination of parental rights or
adoption, that the parent(s) or guardian(s) either have willfully
failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the
child;
* * *
(iii) A biological or legal father has either willfully failed to visit
or willfully failed to make reasonable payments toward the
support of the child’s mother during the four (4) months
immediately preceding the birth of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(i), (iii). Father’s argument is essentially two-fold: First,
he asserts that the trial court incorrectly computed the four-month period for purposes of
establishing abandonment under Section 36-1-102(1)(A)(i). Second, he contends that the
evidence does not clearly and convincingly show that his failure to visit or support the Child
was willful. We address these issues in turn.
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B.
Father first argues that the trial court incorrectly used the four-month period preceding
the filing of the original termination petition by Mother alone rather than the time period
preceding the filing of the amended petition, for the purpose of considering abandonment by
failure to support or visit the Child. Father’s argument has merit as to the support issue.
As we earlier noted, Mother initially filed a petition to terminate on April 18, 2011.
Following her marriage to Stepfather, she filed, on June 27, 2011, a motion to join him in the
pending action and a motion for leave to file an amended petition to terminate and to allow
adoption by Stepfather (“Amended Petition”). On October 5, 2012, the trial court entered
an agreed order granting the motions. Inexplicably, the Amended Petition was not filed until
March 4, 2013, the day before trial.
At the outset of trial, the issue of which four-month period was applicable to the
allegations of abandonment pursuant to Section 36-1-102(1)(A)(i) was briefly discussed:
The Court: What statute are you proceeding under, Ms. McCoy?
Ms. McCoy [Counsel for Mother and Stepfather]: On the
grounds of abandonment, Your Honor. That child support was
not paid for four months preceding the filing of [t]his petition.
In addition, that [Father] did not visit for the four months
preceding filing this petition.
* * *
Mr. Talley [Counsel for Father]: He’s been paying by court
order for --
* * *
– for two and a half years.
* * *
Ms. McCoy: [T]he grounds after the petition is filed cannot be
cured. And the fact of the matter is four months preceding the
petition he had not visited nor had he paid child support.
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* * *
Mr. Stern [Guardian ad litem]: [J]ust to throw my two cents in
on that, to me the issue is going to be the four month period
because an initial termination petition was filed by the mother
against the father, then I got appointed. It’s my understanding
that one parent cannot terminate on the other parent.
Subsequent to that . . . an amended petition was filed including
the mother’s husband, stepfather, to where he’s the one actually
seeking to terminate the father’s rights. So my contention would
be that the four month period we need to look at needs to be
from the amended petition, not the original petition, as to dad’s
efforts to visit or failure to visit and the support.
Ms. McCoy: [T]his is an amended petition filed under Rule 15
of the Rules of Civil Procedure so, therefore, all of the grounds
relate back to the time of the initial petition being filed.
The Court: I knew that’s what your argument was going to be.
Ultimately, Mother’s position prevailed. In its termination order, the trial court found that
Father “willfully failed to support or visit with the minor child for four (4) consecutive
months or more immediately preceding the filing of the proceeding to terminate parental
rights. . .” and that “the Amended Petition relates back to the filing of the original Petition
pursuant to Rule 15 of the Tennessee Rules of Civil Procedure.” As a result, the trial court
considered Father’s conduct during the four-month period immediately preceding the filing
of Mother’s original petition in April 2011.
In our view, however, the Guardian ad litem got it exactly right. In this state, the
termination of a biological parent’s rights to a child is governed by statute. In this regard,
Tenn. Code Ann. § 36-1-113(b) provides the following parties with standing to file a parental
termination petition: “[t]he 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. . . . As can be seen, the statute does
not grant one parent the authority to alone seek termination of the other parent’s rights, and
the Supreme Court has expressly so held. See Osborne v. Marr, 127 S.W.3d 737 (Tenn.
2004). In the present case, Mother clearly lacks standing to file a petition to terminate
Father’s rights by herself. Therefore, the original termination petition she filed in April 2011
is null and void. As we see it, it follows that Tenn. R. Civ. P. 15.03 providing for the
“relation back” of amendments to the filing of an original pleading is not applicable. Simply
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stated, there can be no “relation back” to a pleading – in this case, the original petition by
Mother – that was a nullity from the start. Moreover, as Father correctly asserts, the Supreme
Court has further observed that “[b]ecause 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.” Based on the
foregoing, the original petition to terminate is a nullity – ineffectual for all purposes.
Father reasons that the four-month period from November 4, 2012, until the filing of
the Amended Petition on March 4, 2013 is the applicable statutory period. We conclude that
he is correct. In In re D.L.B.,118 S.W.3d 360 (Tenn. 2003), the Supreme Court had to
consider the proper calculation of the four-month period for purposes of considering a
parent’s abandonment by non-support and/or failure to visit under Section 36-1-102(1)(A)(i).
In that case, DCS took custody of a minor child as a result of the mother’s drug use during
her pregnancy; the child immediately entered foster care. In May 2000, CASA filed a
petition to terminate parental rights against the child’s mother and her husband. Early in her
pregnancy, however, Mother had advised a Mr. Moore, with whom she also had a
relationship, that she believed him to be the biological father. Later, the juvenile court
granted CASA leave to amend the petition to include Mr. Moore. Subsequently, Mr.
Moore’s paternity was confirmed and he began visiting the child and paying child support
as ordered. CASA filed an amended petition naming Mr. Moore. In May 2001, the juvenile
court dismissed the amended petition. Meanwhile, in January 2001, the Nickelsons, the
foster parents/prospective adoptive parents, filed a petition in the chancery court to terminate
Mr. Moore’s rights and to adopt the child. Id. at 363-64. After a trial, the court terminated
Mr. Moore’s rights. On appeal, this court affirmed.
On second-tier appellate review, the Supreme Court observed: “[I]t is clear that during
the four months preceding the Nicklesons’ filing of the petition to terminate parental rights,
Mr. Moore paid child support and visited with [the child]. The chancery court and Court of
Appeals, however, relied upon Mr. Moore’s failure to pay child support or visit with D.L.B.
in the four-month period preceding the filing of CASA’s May 2000 petition to terminate
parental rights.” Id. at 365. The High Court concluded this was error and reversed the
decision. The Court held as follows:
[T]here is no indication that the legislature intended that conduct
occurring prior to dismissal of an earlier petition to terminate
parental rights that was brought by one party should be used as
a ground for terminating parental rights in a subsequent
proceeding initiated by another party. Accordingly, we hold that
only a parent’s conduct in the four months immediately
preceding the filing of a petition then before the court may be
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used as grounds to terminate parental rights under Tennessee
Code Annotated section 36-1-102(1)(A)(i). Since there is no
dispute that Mr. Moore paid child support and visited [the child]
in the four months immediately preceding the petition filed in
the chancery court by the Nicklesons, the lower courts erred in
terminating Mr. Moore’s parental rights based upon Tennessee
Code Annotated section 36-1-102(1)(A)(i).
Id. at 366.
In the present case, Mother acknowledges In re D.L.B., but concludes that it is not
applicable because Mother’s original petition was never dismissed. We disagree. In our
view, the Court’s holding – “that Tennessee Code Annotated section 36-1-102(1)(A)(i)
requires that the willful failure to visit, support, or make reasonable payments toward the
support of the child must have occurred in the four months immediately preceding the filing
of the petition currently before the court,” see id., – applies not only in the context of a
dismissed, earlier-filed petition to terminate, but more broadly to other situations involving
the filing of multiple petitions to terminate against the same party. Here, we have already
concluded that Mother’s original petition is null and void. In effect, the situation is the same
as if the original petition was dismissed. Accordingly, consistent with In re D.L.B., the
applicable four-month period is the four months immediately preceding the filing of the
Amended Petition. The trial court erred in concluding otherwise.
C.
We consider the evidence regarding Father’s payment of child support in the four
months from November 4, 2012 until March 3, 2013, the day before the Amended Petition
was filed. The proof showed that Father was ordered to pay child support of $350 per month
beginning in February 2010. He made a first, voluntary partial payment in June 2011. By the
time trial was held in March 2013, Father had paid his child support in full each month since
July 2011. On the facts before us, we conclude that the trial court erred in terminating
Father’s rights for failure to pay child support pursuant to Tenn. Code Ann. § 36-1-
102(1)(A)(i). Accordingly, we hereby vacate this ground for termination.
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D.
The trial court terminated Father’s rights for failure to visit the Child, also under
Section 36-1-102(1)(A)(i). Again, the trial court incorrectly considered the same four-month
period preceding the filing of the original petition in finding that this ground of abandonment
was proven. As to this ground, however, we conclude that the erroneous calculation is of
no consequence. Father does not dispute the fact that he has visited the Child only once –
in the hospital at the time of the Child’s birth. Instead, Father’s proof was focused on his
contention that his failure to visit was not wilful.
P.S. testified that Father had made efforts to be involved with the Child and she had
worked with him. At first, Father had no rights because he was not named on the birth
certificate. P.S. said she was the one who put visitation with the Child “on hold” until after
Father’s parentage could be confirmed, which took much longer than they had hoped. P.S.
said she and Father were “very close,” and he had told her of his attempts to reach out to
Mother with respect to seeing the Child up until the termination proceedings began. P.S.
stated: “He would come to me and tell me that he had e-mailed or gone through a friend or
all these different things and the answer was always no.” P.S. noted that she had not herself
tried again to visit the Child because she had “the real impression that we were going through
this whole court process to make that happen.” As a result, she had no reason to advise
Father that he needed to do more or something different regarding visitation. P.S. testified
that Father had talked with Mother and believed things were moving forward regarding the
Child, but then “the game changes. . . .”
Father further testified he made other efforts to see the Child. He said once, when the
Child was nine or ten months old, he went to Mr. Gatti’s where Mother and the Child were
attending another child’s birthday party. When Father saw them through a window, Mother
covered the Child, retreated to a corner, and declined to come outside and speak with him.
After that, Father’s efforts at “trying to get something together” with respect to the Child
were mostly limited to communicating with Mother or her friends via Facebook. Later, after
Father obtained DNA results, he and P.S. visited a family law attorney who provided them
with a form parenting plan. P.S. and Father drove directly to Mother’s house, and P.S. gave
the plan to Mother. Father said he stayed in the car because he had “heard through the
grapevine that her brothers weren’t very happy” with him. At some point in the spring of
2010, Father said he and Mother had a lengthy, amicable phone conversation in which he
begged Mother to let him see the Child. A few days later, when he had not heard back from
Mother, he tried to call again and she had changed her phone number. He said once Mother
changed her number, “that was pretty much it.”
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Regarding his right to have contact with the Child, Father conceded that even while
Mother was still pregnant, he was made aware that if he and Mother couldn’t reach an
agreement, he would “need to file something” and “at some point [he] would have to go to
court.” He admitted he never took any action. Asked what other efforts he made to see the
Child since the termination proceedings began, Father said he made none because after
Mother married and moved out of her parents’ house, he had no contact information and
“didn’t even know if she still worked at Dixie Stampede or not.” On this point, Mother
testified that she continued to work at Dixie Stampede, as she had for over nine years, and
Father knew how to reach her. Mother acknowledged that, early on, Father would call and
say that he had diapers for the Child and would bring them by or that he would say he was
coming to visit, but never followed through.
Before this Court, Father insists that his lack of contact with the Child cannot be
deemed willful. The trial court was unconvinced, as are we. The court found, in relevant
part, as follows:
[I]t’s uncontradicted that in this child’s life the father has only
seen this child one time. [H]e and others testified about maybe
the reasoning and I don’t question the reasoning; however, the
father . . . was told early on by [DHS] that he would have to file
a petition . . . .
So it is clear to the Court that even though at times there were
negotiations going on back and forth or at least on one side, . . .
there is no doubt that for a period . . . from the child’s birth until
this action was filed the father filed no petition to see this child
or anything like that. And so it is clear to the Court,
unfortunately, . . . that he has not had any visitation, has not
sent things to the child at Christmas or birthdays. And Facebook
communications, folks, . . . are not a legal substitute for
complying with the law. [A]nd it’s uncontradicted, that the
father was never told he couldn’t visit. But again, he was told,
by his own admission, that [DHS] told him that he would have
to file a petition for visitation. And as in many cases, . . . often
times the grandparents or other family members are more
concerned sometimes than the actual parents of the children.
Even support by grandparents is not a legal substitute for
support and contact by the parent.
* * *
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[R]egretfully, but with clear and convincing evidence, [Mother
and Stepfather] have proven . . . that the child . . . has been
abandoned by the father . . . .
The evidence preponderates strongly in favor of a finding that Father willfully failed
to visit the Child in the relevant months before the Amended Petition was filed. The trial
court properly terminated Father’s rights on the ground of abandonment pursuant to Tenn.
Code Ann. § 36-1-102(1)(A)(i) for his failure to visit the Child.
E.
The trial court terminated Father’s rights on the ground of abandonment under
subsection (iii) of Tenn. Code Ann. § 36-1-102(1)(A) in that he “failed to make reasonable
payments toward the support of [Mother] . . . for four (4) consecutive months immediately
preceding the birth of the Child.” In considering this form of abandonment, the relevant four
month-period is November 23, 2008 until March 22, 2009. The Child was born on March
23, 2009.
Before this Court, neither party specifically addresses this ground for termination;
instead, they focus only on the alternate grounds of abandonment by failure to support and
failure to visit the Child under Tenn. Code Ann. § 36-1-102(1)(A)(i). Moreover, Mother
confusingly asserts that she pursued termination based on abandonment under subsection
(iii), “and the trial court did find that Father had abandoned the minor child by willfully
failing to visit or support the minor child for the four . . . months preceding the filing of the
original Petition.” This is provided under subsection (i). In any event, we have considered
the evidence in light of the court’s finding of abandonment under Section 36-1-
102(1)(A)(iii).
At trial, Father admitted that he provided no financial support to Mother during her
pregnancy. As to whether his conduct was wilful, the proof showed that Father and Mother
continued to work at Dixie Stampede after Mother became pregnant. Before the Child was
born the following year, however, Father was unemployed. Father testified that 2009 was
a “horrible year” for him, and he was unemployed for “a good eight months.” At the same
time, Father admitted that the reason he was without income at that time was because he was
fired from Dixie Stampede for “failing to show up.” Further, Father admitted that while he
looked for another job, he was able to do construction work for his stepfather “to keep food
in [his] mouth.”
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On our review, the evidence does not preponderate against the trial court’s finding of
clear and convincing evidence of abandonment based on Father’s wilful failure to provide
any support to Mother in the months before the Child was born. The trial court did not err
in terminating Father’s rights on the ground of abandonment as defined in Tenn. Code Ann.
§ 36-1-102(1)(A)(iii).
V.
Father challenges the trial court’s best-interest determination. He asserts that the trial
court essentially found that the Child would be “better off” if Father’s ties to him were
severed, rather than finding that Father had forfeited his parental rights by failing in his
parental responsibilities to the Child. Father concludes: “Notwithstanding [Stepfather’s]
intentions to provide a stable and nurturing environment for the [C]hild by adopting him, the
trial court erred in terminating Father’s parental rights based simply on the benefits to the
[C]hild from such an outcome.”
In considering the “best interest” issue, we are guided by the following statutory
factors set forth in Tenn. Code Ann. § 36-1-113(i)(Supp. 2013). That section provides:
In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the
court shall consider, but is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
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(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances or controlled substance analogues as may
render the parent or guardian consistently unable to care for the
child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
“The above list is not exhaustive and there is no requirement that all of the factors
must be present before a trial court can determine that termination of parental rights is in a
child’s best interest.” State Dept of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502 (Tenn.
Ct. App. 2007) (citing Dep’t of Children’s Servs. v. P.M.T., No. E2006-00057-COA-R3-PT,
2006 WL 2644373, at *9 (Tenn. Ct. App. Sept. 15, 2006)).
We quote pertinent portions of the trial court’s best-interest analysis:
[I] could go through and cite you case after case here but you all
know that, counsel, . . . it is in the best interest of the child
because he – the child has established an obviously good
relationship with the stepfather, that there appears to be a lot of
love there. And while I don’t discount the fact that the father in
this case may love his child . . . , the bottom line is that, and I
say, he has legally abandoned the child. . . .
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* * *
And so the Court must find those [termination] factors and I do
find likewise that it is in the best interest of the child that the
parental rights of the father herein be terminated and that based
upon the testimony . . . that the stepfather . . . be allowed to
adopt this child.
At trial, Father said that during 2011, after a DUI conviction, he was diagnosed with
ADHD and dyslexia. After he began taking new medications, “it was pretty much overnight
that everything simply started working out right. . .” He admitted, however, that he could not
have passed a drug screen as recently as January 2012. Father said he had been employed
in sales for U.S. Cellular for nearly two years and lived in an apartment, with roommates, for
almost three years. Father described his life as “fantastic” and said the only thing really
missing was contact with the Child.
P.S. testified in the last few years, Father had become the son she knew he could be.
She said, in earlier years, he had been in a “negative place” and had gone through a lot. She
took him to see a doctor who prescribed an anti-depressant. As time went on, she couldn’t
understand why Father, a “bright” person, “couldn’t put his own life together.” Eventually,
during 2010, they saw other doctors who opined that Father’s ADHD and social anxiety had
been misdiagnosed. According to P.S., Father’s new medication “changed his life.” She said
that Father was able to work now and take care of himself – he shared a place with
roommates and paid his own rent and bills. She could not say, however, that he could pass
a drug screen at the time of trial. P.S. acknowledged that Father had problems and had made
some mistakes, but suggested they were in the past. She described him as a loving son, and
an “excellent person” with a family that desperately wanted the Child in their lives. P.S.
concluded that Father was capable of looking out for the Child, and that his family was also
available to assist him. P.S. introduced a July 2012 letter sent from Father’s attorney to
Mother, at P.S.’s request, which expressed her desire not to interfere, but to foster a
relationship with the Child.
In summary, the proof showed that Father had no relationship with the Child.
Although Father testified he tried to make contact and work with Mother, his efforts to make
sure that he saw the Child were seemingly half-hearted, unofficial, and infrequent, at best.
As the trial court emphasized, Father to the time of trial, has had “only token contact, one
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contact since the child has been alive. . . .” Mother held the view that, at this point, it would
be “devastating” to the Child if Father entered his life. She continued:
“[Stepfather] is the only father that he knows and to suddenly be
told he’s not your daddy, this guy is, it would be just traumatic
for him. He wouldn’t understand. [H]e’s doing so well. He’s
going to be entering preschool soon and to suddenly have this all
thrown at him it would just be devastating.”
Like the trial court, we do not doubt that Father has love for the Child and would like to
spend some time with him. At the same time, months, then years have passed while Father
did nothing to build any relationship with his son. During most of that time, Stepfather
literally “stepped up” and became a parent to the Child in every sense of the word. Nothing
in the record before us convinces that the Child’s world should be turned upside down at this
point for Father’s benefit. Looking at the situation from the perspective of the Child, as the
law requires, we conclude that the evidence clearly and convincingly supports the trial
court’s findings in support of its determination that the Child’s best interest is served by
permanently severing the rights of the “father” he has never known.
VI.
As an additional issue, Mother asserts that Father’s appeal should be dismissed for
failure to comply with Tenn. R. App. P. 8(A). That rule governs appeals as of right in
parental termination cases and provides, in relevant part, that a notice of appeal in a
termination of parental rights proceeding “shall indicate that the appeal involves a
termination of parental rights case.” Mother correctly notes that, in the present case, Father’s
notice of appeal indicates only that it is a “civil” action.
This Court’s case file reflects that Father filed a timely notice of appeal on August 12,
2013. The notice, although incorrectly designating the case as civil, correctly listed other
identifying information – the parties, the date of the judgment being appealed, the trial court,
the trial judge, and the trial court case number. The notice of appeal reflects that a copy was
sent to Mother’s counsel on the same day it was filed. Ultimately, the appeal was properly
docketed in this Court as a parental termination case and proceeded accordingly. Mother
claims no apparent prejudice as a result of the technical error by Father, and we find none.
Accordingly, the requested relief is hereby denied.
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VII.
The judgment of the trial court is affirmed as modified. That portion of the judgment
terminating Father’s parental rights on the ground of abandonment by failure to provide child
support pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i) is vacated. In all other respects,
the judgment terminating Father’s parental rights is affirmed. Costs are taxed to the
appellant, C.D.T. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and the collection of costs assessed below.
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE
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