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In re A.S.C.

Court of Appeals of Tennessee, Knoxville

August 29, 2014

In re A.S.C.

Session Date June 17, 2014

Appeal from the Circuit Court for Sevier County No. 2011-A017-II Rex Henry Ogle, Judge

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]

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, jj., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

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 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 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.
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 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.

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