In Re: Alexis M.M. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2012
IN RE ALEXIS M.M.
Appeal from the Juvenile Court for Sullivan County
No. J15478 J. Klyne Lauderback, Jr., Judge
No. E2012-00022-COA-R3-PT-FILED-AUGUST 20, 2012
Jason C. (“Putative Father”) appeals the termination of his parental rights to his minor child,
Alexis M.M. (“the Child”). The Department of Children’s Services (“DCS”) pursued
termination after Putative Father was incarcerated and the Child was adjudicated dependent
and neglected in the care of her mother, LeAnn M. (“Mother”). Following a bench trial, the
court applied Tenn. Code Ann. § 36-1-113(g)(9)(A), applicable to non-legal parents, and
terminated Putative Father’s rights based upon multiple grounds, including the failure to
provide child support, to visit, or to establish his paternity. Putative Father challenges the
sufficiency of the evidence supporting each of these grounds. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Jason C.
Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant
Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.
OPINION
I.
On March 3, 2011, DCS filed a petition to terminate Putative Father’s rights.1 By the
time of the October 2011 trial, the Child, age seven, had been in state custody for just over
two years.
The Child was born to Mother on August 8, 2004. At that time, Mother was still
married to Tim A., the father of her three older children, but she was living with Putative
Father and all four of her children.2 Mother refused to identify the father on the Child’s birth
certificate. Mother later related to her case manager that she became pregnant while she and
Putative Father were living together and “that’s how she knew he was the father.” Mother
immediately advised Putative Father that the Child was his. Putative Father did not attend
the Child’s birth, but always held himself out as her father.
Mother and Putative Father had a tumultuous relationship that included multiple
incidences of domestic violence and ongoing involvement with the Virginia Department of
Social Services. According to Megan Hunt, the family’s case worker in Virginia, she
provided assistance including domestic violence classes for Mother and counseling for the
children who had witnessed Putative Father assaulting Mother. Ms. Hunt testified that
although her department obtained a protective order prohibiting Putative Father from being
in the home with the Child, she continued to observe him in and around the home. In January
2008, Ms. Hunt made an unannounced visit and found Mother in the process of leaving with
the children. Mother “had been beaten pretty bad. Her tooth was through her lip, her head
was busted open” and the children were all “very upset.” According to Ms. Hunt, Mother
told her there had been other incidences of abuse against her and “she was through with him
and wanted to move on,” yet she continued to allow him in the home. Ms. Hunt said the
order of protection was abated by a Virginia court when the family moved to Tennessee.
Questioned about Putative Father’s paternity status, Ms. Hunt said it was never discussed or
established, but was “just kind of understood” and the local court had treated him as the
Child’s father.
1
DCS’s petition also sought to terminate the parental rights of the Child’s mother and those of a Mr.
A. as to four children – the Child and her three half-siblings. The children’s cases were consolidated for trial.
Neither the child’s mother nor Mr. A. appeared at trial and default judgments were entered against both.
Putative Father did appear and testified. The instant appeal concerns only Putative Father and the Child; we
refer to Mother and the others only as is necessary to recite the relevant underlying facts.
2
The precise time frame is not clear, but the record indicates that the family lived in the state of
Virginia during some portion of the time period from 2004 to 2009.
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In July 2009, Putative Father was incarcerated; Mother and the children returned to
Tennessee. Three months later, on September 28, 2009, law enforcement officers were
summoned to the four children’s school because they were suffering from the flu and Mother
could not be located. Officers went to their home and found that the Child, her siblings, and
Mother were living in disarray. There was no adult present to take custody of the children,
and officers observed no door knob on the front door. They also saw drugs and drug
paraphernalia. The Child and her siblings were taken into protective custody and
subsequently adjudicated dependent and neglected.
Putative Father remained incarcerated until January 2010. The Child’s DCS case
manager, Marsha Carrier, testified that Putative Father contacted her in 2010. He was aware
that the Child was in state custody and expressed an interest in arranging visitation.
According to Ms. Carrier, he “wanted to know how to get visitation and [knew] that he
needed to do a DNA test.” In all, Putative Father called her once in February and twice in
March, the last time to request visitation around Easter. In their conversations, Ms. Carrier
explained that DCS would not permit visitation because Putative Father had not provided
proof that he was the Child’s father – as previously noted, he was not named on the Child’s
birth certificate and Mother was still married to Mr. A; therefore, Mr. A. was presumed to
be the Child’s father. She explained to Putative Father “several times” the various steps that
needed to be taken to establish paternity and offered to contact the Child Support
Enforcement Division to see if they could cover the expense of a DNA test. According to
Ms. Carrier, the Child Support Enforcement Division declined to provide testing for Putative
Father prior to first testing the Child’s legal father, Mr. A., whom they were unable to locate.
Thus, if Putative Father wanted a DNA test, he would have to pay for it himself.
Ms. Carrier told Putative Father that he had another option; he could notify the court
that he was the possible father and request a DNA test and he could file with the Putative
Father Registry. She stated that she prepared all the forms and contact information to give
to Putative Father, but “he opted to do the DNA testing.” On Putative Father’s inquiry, Ms.
Carrier told him the DNA test typically cost between $300-$400. Putative Father told Ms.
Carrier that he would have the necessary funds after he received his income tax refund the
following month and that he would then pursue the test on his own. Ms. Carrier told Putative
Father to let her know when he was ready so she could make the Child available for testing.
She informed Putative Father that once his paternity was established, DCS would include him
in the Child’s permanency plan.3
3
The Child’s permanency plan references Putative Father only to state that he “needs to complete
paternity testing” and “needs to maintain contact with DCS.”
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Putative Father was again incarcerated in June 2010. In March 2011, Ms. Carrier
visited him in jail and advised him that paternity still needed to be established, but that the
Child Support Enforcement Division would not pay for the DNA test. Ms. Carrier did not
hear from Putative Father again. He neither filed a petition to establish paternity of the Child
nor indicated on the Putative Father Registry that he was the Child’s father. She testified she
was not aware of any contributions that Putative Father made toward Mother’s prenatal or
post-delivery expenses or any child support payments by him since DCS took custody.
While in foster care, the Child was diagnosed with ADHD and “oppositional defiance
disorder” for which she was receiving therapy. In addition, she was following a specialized
education plan developed for her at her school. The Child had shared the same foster home
with her siblings for nearly two years and they had done well and enjoyed an active life.
Although their home was not pre-adoptive, DCS was in the process of finding a permanent
home for them. Ms. Carrier felt that Putative Father had failed to develop a meaningful
relationship with the Child and believed placing custody with him would have a detrimental
effect on the Child. Instead, she believed it best for the Child and her siblings to remain in
“a safe and stable environment[] like they have been, to excel in all aspects of their lives.”
Putative Father testified that he was part of the Child’s life and supported not only her
but Mother’s other children until he was incarcerated in July 2009 and that the children were
soon thereafter removed to DCS custody. After his release, he called Ms. Carrier “time and
time again to . . . see, where [he] could see [the Child],” but was told he had no rights to the
Child. He agreed that other than speaking with Ms. Carrier, he had taken no proactive steps
to secure a DNA test to help establish his paternity. Putative Father acknowledged that he
told Ms. Carrier that he would pay for the DNA test with his tax refund, but said he could not
afford it after he received only $84 back. He said he remembered every detail of his
conversations with Ms. Carrier, but did not recall her telling him about the Putative Father
Registry or about petitioning the court for a finding of paternity. He agreed that he told Ms.
Carrier he would pay child support “if [he had] to,” but that he never did. The proof showed
that Putative Father was out of prison from January to June 2010 and lived with his mother
during that time. He worked odd jobs to support himself and help his mother.
At the time of trial, Putative Father had been out a jail for about a week and was on
parole. Putative Father said that he was employed with a concrete company full-time,
earning over $14 an hour. He said he still lived with his mother, but was preparing to move
into a mobile home he had bought. He said he completed anger management classes while
living in Virginia. He said he had made efforts to get paternity established, but had no
money to obtain the test and “being incarcerated didn’t help either.” Putative Father said the
court system in Virginia had always treated him as the Child’s father and he was willing to
take steps and accept services his parole officer had offered, including parenting classes, in
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order to see the Child and get custody. He last saw the Child in July 2009. Putative Father
admitted to an extensive history of domestic violence involving the Child’s mother, going
back to 2003, but denied that he had abused her in the presence of the children.
At the conclusion of the hearing, the trial court terminated his parental rights pursuant
to multiple provisions in Tenn. Code Ann. § 36-1-113(g)(9). Specifically, the court found
that Putative Father (1) failed to make reasonable and consistent provision for the support
of the Child in accordance with Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii); (2) failed to visit
or attempt to visit the Child in accordance with Tenn. Code Ann. § 36-1-113(g)(9)(A)(iii);
and (3) failed to petition for paternity of the Child in accordance with Tenn. Code Ann. §
36-1-113(g)(9)(A)(vi). The trial court further found that termination of Putative Father’s
rights was in the best interest of the Child. In support of its ruling, the trial court elaborated:
That pursuant to T.C.A. § 36-1-113(g)(9)(A) and subsequent
sections dealing with the parent who is not the legal father, the
basis for terminating the parental rights of [Putative Father] is
his failure to establish paternity, DCS has proven that by clear
and convincing evidence.
That [Putative Father] failed to seek visitation with [the Child].
Specifically, he was out of jail for five . . . or six . . . months and
failed to take affirmative steps to obtain visitation or make some
contact. The proof in this case shows there was no attempt to
establish visitation other than making phone calls to, or
receiving phone calls from a representative of [DCS]. [Putative
Father] did not, during that time, make any attempt to obtain
custody of the [C]hild besides those few phone calls. There is
a requirement that he do more than just make phone calls.
Putative Father timely filed notice of appeal.
II.
Putative Father raises the following issue for our review:
The termination of Putative Father’s parental rights based solely
upon Tenn. Code Ann. §§ 36-1-113(g)(9) and 36-1-117(c) is
contrary to the law and the evidence.
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III.
We employ the following standard of review in cases involving the termination of
parental rights:
[T]his Court’s duty. . . is to determine 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). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is otherwise. Id.; Tenn. R. App. P. 13(d). In weighing the
preponderance of the evidence, great weight is accorded to the trial court’s determinations
of witness credibility, which shall not be reversed 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 presumption of correctness. Langschmidt v. Langschmidt, 81
S.W.3d 741, 744-45 (Tenn. 2002).
It is well established that parents have a fundamental right to the care, custody,
and control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). 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. See Blair v. Badenhope, 77 S.W.3d
137, 141 (Tenn. 2002). 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 interests of the child.” T.C.A. § 36-1-113(c); In re F.R.R., III,
193 S.W.3d at 530. Both of these elements must be established by clear and convincing
evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Evidence satisfying the clear and convincing evidence standard establishes that the truth of
the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003
WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct.
App. 2004).
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IV.
A.
Putative Father challenges the sufficiency of the evidence in support of the
termination of his rights pursuant to the cited grounds in Tenn. Code Ann. § 36-1-
113(g)(9)(A)(ii), (iii), and (vi). We address each ground in turn.
The termination of the rights of a legal parent or guardian must be based on one or
more of the grounds contained in Tenn. Code Ann. § 36-1-113(g)(1)-(8). See In re Adoption
of S.M.F., No. M2004-00876-COA-R9-PT, 2004 WL 2804892 (Tenn. Ct. App. M.S., filed
Dec. 6, 2004). Tenn. Code Ann. § 36-1-113(g)(9)(A) sets forth additional, “less exacting”
grounds for terminating the rights of a person who is not a child’s legal parent or guardian
at the time the termination petition is filed. Id. at * 6. Stated otherwise, the grounds in
Section 36-1-113(g)(9)(A) apply only to cases in which there is no legally established
relationship between a parent and a child. Jones v. Garrett, 92 S.W.3d 835, 839-840 (Tenn.
2000).
B.
The trial court terminated Putative Father’s rights upon finding that he “has not
provided any support for [the Child] since she came into DCS custody. “ In this regard,
Section 36-1-113(g)(9)(A)(ii) provides that termination can be based upon a finding that a
“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.” Putative Father asserts that during
the first years of the Child’s life, he provided for the Child “financially and emotionally.” He
submits that his failure to support the Child since then cannot be deemed willful since he was
incarcerated much of the time.
The proof shows that Putative Father was living with Mother and the Child until he
went to jail on July 1, 2009. The Child entered DCS custody on September 28, 2009, a fact
of which Putative Father was admittedly aware. Putative Father was released in January
2010 and remained free for nearly six months before returning to jail. At no time since DCS
took custody, including the months after his incarceration, did Putative Father provide any
support for the Child. The proof does not preponderate against the trial court’s finding that
Putative Father failed to provide reasonable and consistent child support. To the contrary,
Putative Father’s own testimony strongly suggests that he conscientiously chose not to
provide support in any measure, not because he was unable, but because he was denied
visitation. On cross-examination, Putative Father testified:
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[DCS counsel]: During the time that you were out of jail did
you make any attempts to provide anything . . . for [the Child]
with respect to child support or anything else?
[Putative Father]: I talked to Ms. Carrier and asked her for, I
told her I would pay child support if I have to.
[DCS counsel]: But you never made any attempts to do that on
your own?
[Putative Father]: Well, no, when I’m sitting there told, telling
me that I have no rights to my child, I mean, I can’t see my
daughter or nothing like that, how am I[] going to pay support
if they’re telling me I can’t even see her? I can’t have nothing
to do with her. Nothing. That she ain’t even mine. Other than
that, I mean, I’m not a deadbeat father. I, I want to take care of
my kids. I supported [the Child] for five years of her seven
years of her life. . . .”
C.
The trial court also terminated Putative Father’s rights pursuant to Tenn. Code Ann.
§ 36-1-113(g)(9)(A)(iii). That section provides, in relevant part, for termination when “[t]he
person has failed to seek reasonable visitation with the child. . . .” In particular, the trial
court, by clear and convincing evidence, found as follows:
[Putative Father] . . . has failed to attempt to seek reasonable
visitation, and had failed to visit with the [C]hild since he was
notified the [C]hild was in the custody of DCS. The proof
showed that [Putative Father] was notified this [C]hild was in
DCS custody and knew of his possible paternity of the [C]hild
since her birth. During the five . . . or six . . . months when
[Putative Father] was not incarcerated he took only minimal
steps to attempt to visit the [C]hild consisting of several
telephone calls.
The proof shows that Putative Father first inquired about visiting the Child after his
release in early 2010. During the time he was not in jail, he admittedly was advised that in
order to gain visitation rights, he needed to establish his paternity and the process was
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explained to him “several times.” At that time, he indicated to the case manager that he
would pursue DNA testing on his own, but his anticipated tax refund apparently did not
materialize to the extent expected and he essentially dropped the matter. The evidence does
not preponderate against the trial court’s termination of Putative Father’s rights based on his
failure to seek visitation with the Child.
D.
The trial court terminated Putative Father’s rights based on his failure to establish his
paternity in accordance with Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi). That section
provides for termination when “[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); . . . .” As to this ground, the trial court found that
[Putative Father] knew at the birth of the [C]hild that she could
potentially be his child. [Putative Father] has failed to file a
petition for paternity with this Court, and has not notified DCS
of his filing for paternity in any other Court.
The court concluded that Putative Father’s rights should therefore be terminated “by reason
of his failure to file a petition to establish paternity of the [C]hild within thirty (30) days after
notification of alleged paternity.”
At trial, Putative Father admitted that, while he and Mother were living together,
Mother immediately notified him upon learning that she was pregnant. Putative Father took
no action at that time to establish his paternity despite believing and holding himself out to
be the Child’s father. His testimony suggested he never felt the need to do so because he
initially lived with the Child and was apparently treated as her father in his dealings with the
state of Virginia. The proof further shows, however, that Putative Father failed to take
action, other than a few phone calls to DCS – mainly involving obtaining a DNA test – to
prove his paternity even after he knew that failing to do so meant that he would not be
permitted to see the Child, much less be able to gain custody. After he returned to jail and
the petition was pending, Putative Father’s options may have been limited, yet he failed to
exercise any of his available options, i.e., by filing a petition to have his paternity
adjudicated in court or executing a sworn, voluntary acknowledgment of paternity. Had
Putative Father followed either course of action before the termination proceeding was
initiated, he would have been deemed the Child’s legal father. He also could have registered
with the Putative Father Registry. He did not. In short, the evidence certainly does not
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preponderate against the trial court’s finding that Putative Father’s rights should be
terminated based on his failure to establish paternity of the Child.
In summary, the record before us contains clear and convincing evidence to support
each of the cited grounds in support of the trial court’s termination order. Simply stated,
after the Child came into the custody of DCS, Putative Father did not support the Child and
did not visit the Child. Furthermore, at no time did he establish his paternity of the Child.
The trial court did not err in terminating Putative Father’s rights pursuant to Tenn. Code Ann.
§ 36-1-113(g)(9)(A)(ii), (iii), and (vi).
V.
Although not framed as a separate issue, Putative Father asserts in the argument
section4 of his brief that the trial court erred in its conclusion that termination of his rights
is in the best interest of the Child. As we noted earlier, the termination of a parent’s rights
involves a two-step process. Parental rights may be terminated only if grounds for
termination are proven and if termination is in the best interest of the child. In re F.R.R., III,
193 S.W.3d at 530. (Emphasis added). Having concluded that grounds for termination were
sufficiently proven in the present case, we next consider the trial court’s best-interest
analysis. Our review is guided by the non-exclusive list of factors set forth in Tenn. Code
Ann. § 36-1-113(i).5
4
All issues should be stated in the “Issues Presented for Review” section of the brief. See Tenn. R.
App. P. 27(a)(4). Despite this deficiency in Putative Father’s brief, we elect to address the issue of the
Child’s best interest. See Tenn. R. and P. 2.
5
The statutory factors are as follows:
(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;
(continued...)
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In the present case, the trial court cited several factors in support of its ruling. In particular,
the court found that Putative Father had failed (1) to make a lasting adjustment of his
circumstances, conduct, and conditions so as to make it safe for the Child to “go home,” (that
is, reside with him); (2) to establish visitation with the Child since she was removed to DCS
custody; (3) to maintain a meaningful bond with the Child; and (4) to make any child support
payments since the Child entered DCS custody. See Tenn. Code Ann. § 36-1-113(i)(2),(3),
(4), and (9).
At the time of trial, Putative Father had just been released from prison after spending
well over a year there, at least his second term of incarceration during the Child’s young life.
Putative Father always believed that he was the Child’s biological father, but had never filed
a petition to establish his paternity. Between his stints in state custody, Putative Father did
little more than call the DCS case manager a few times to inquire about obtaining a DNA
test, despite knowing that establishing paternity would have enabled him to at least gain
visitation. In our view, Putative Father’s testimony that he had “tried every way in the world
to try to get paternity done so [he] could see [the Child]” rings hollow. Similarly, Putative
Father was aware that the Child had been taken into DCS custody, but never provided her
any support. In the several months he worked before returning to prison, Putative Father
helped to support his mother, but provided not a cent for the Child. Putative Father offered
5
(...continued)
(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 or controlled substances 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.
:
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no viable reason for his failures in these areas, essentially testifying only that he was waiting
for the case manager to assist him in getting a DNA test.
Putative Father last saw the Child on July 1, 2009, when she was almost five. A few
months later, DCS took custody of her, and, some twenty-five months after that, there had
been no further contact, no support, and certainly no evidence of any meaningful relationship
between Putative Father and the Child. In the years since she joined her foster family, the
Child remained closely bonded with her half-siblings, and became “inseparable” from her
half-sister. The children lived together in a safe, comfortable foster home with opportunities
for each of them to enjoy sports and other activities and to travel. The Child was receiving
therapy for her behavioral issues and progressing under an individualized education plan at
school.
Based on the foregoing, the evidence preponderates overwhelmingly in support of the
trial court’s best-interest determination. The trial court did not err in concluding that it was
in the Child’s best interest to terminate Putative Father’s rights.
VI.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Jason C. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the trial court’s judgment and for collection of costs assessed below.
_________________________________
CHARLES D. SUSANO, JR., JUDGE
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