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In re Mackenzie N.

Court of Appeals of Tennessee, Nashville

November 26, 2014

IN RE MACKENZIE N., ET AL.

Assigned on Briefs July 2, 2014

Appeal from the Chancery Court for Overton County No. 13CV10 Ronald Thurman, Chancellor

Daryl A. Colson, Livingston, Tennessee, for the appellant, Veronika P.

Michael Savage, Livingston, Tennessee, for the appellee, Linda L.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL MCBRAYER, JUDGE

I. Background and Procedural History

This is a termination of parental rights case brought by a grandparent against a mother. Veronika P. ("Mother") has two children, Mackenzie N. and Christopher N., who were ages seven and nine, respectively, at the time of trial. Linda L. ("Grandmother") is the children's paternal grandmother.

In September 2010, Grandmother, a Tennessee resident, went to visit Mother and the children after the death of the children's biological father. At the time, Mother and the children were living in Orange County, California. During this visit, Grandmother became concerned with the children's "very poor living conditions." According to Grandmother's testimony: (1) Mother had very limited means at the time because she did not work; (2) she was being physically abused by her then-boyfriend in front of the children; (3) she did not have a stable living situation for herself or the children; and (4) she had a history of mental illness requiring medication.[1] Grandmother also claimed that the children might have been abused.

In the Orange County Superior Court, Grandmother filed a petition to be appointed guardian of the children, which was granted on February 7, 2011, and she took up residence with the children in California. Although the full proceedings before the California court are not in the record, Grandmother testified that, as guardian, she had discretion over matters of visitation between Mother and children. According to Grandmother, she discontinued visitation after Mother began to exhibit aggressive behavior, such as screaming and swearing at Grandmother, and generally upsetting the children.

In April 2011, Mother filed a petition for visitation with the children, but the California court dismissed the petition without prejudice due to Mother's failure to appear at a hearing scheduled for July 6, 2011.[2] Notes from the proceeding indicate that Grandmother was to allow visitation in her "discretion given the best interest of the children." The court also permitted Grandmother to condition visitation on the use of a monitor.

Unfortunately, the option of monitored visitation did not resolve the visitation issues. Mother claimed she could not afford to pay a monitor. When Grandmother offered to pay the associated costs, Mother initially refused. Mother testified that she later attempted to accept Grandmother's offer but that the offer was withdrawn. Efforts to arrange for alternatives to compensated monitors also proved unsuccessful. Grandmother claimed that she could not get other family members to supervise visitation and that a proposal for visitation to take place at a highway patrol office was rejected by Mother.

Mother last saw Christopher at his kindergarten graduation on May 25, 2011. Mother's last in-person visit with Mackenzie was in mid-March 2011. Ultimately, Grandmother sought and received permission from the California court to return to Tennessee with the children, and she did so on February 15, 2012.

After returning to Tennessee, Grandmother filed a petition to be appointed guardian of the children in the Chancery Court for Overton County, Tennessee. By the time the petition was filed, Mother had moved to the State of Washington. Although Mother sought leave to participate in the hearing on the petition by telephone, the court denied her request. The chancery court appointed Grandmother as the children's guardian by order entered on July 5, 2012.

Mother did not visit her children after they had moved to Tennessee, but she and Grandmother arranged for weekly telephone calls with the children. Mother testified that, other than one half-hour phone conversation with Christopher, these calls usually only lasted about three minutes. Grandmother eventually instructed Mother to stop calling because she felt the calls were upsetting the children.

On March 1, 2013, Grandmother filed her Petition for Adoption of a Related Child and Termination of Parental Rights in the Chancery Court for Overton County. As grounds for termination, the petition lists "[a]bandonment as defined in Tenn. Code Ann. § 36-1-102(1)(A)(i)" and various sub-sections of Tennessee Code Annotated section 36-1-113(g)(9) which do not apply to a legal parent, such as Mother. The petition was also deficient in that it failed to comply with Rule 9A of the Tennessee Rules of Civil Procedure but that deficiency was later corrected by amendment.

The trial court conducted a hearing on November 13, 2013. Mother did not dispute the fact that she had not paid child support in the four months prior to the filing of the petition. However, she stated that she had been unable to do so because of her financial situation. Mother also testified that, although she had not seen or spoken to her children in the four months preceding the filing of the petition, this was a direct result of Grandmother's insistence that she have no contact with her children.

On December 9, 2013, the trial court entered an order terminating Mother's parental rights, finding that she had abandoned her children by willfully failing to support or visit them in the four months preceding the filing of the petition for termination and that termination was in the children's best interests. Mother now appeals, arguing that the trial court erred in finding that she had willfully abandoned her children.

II. Analysis

Termination of parental rights is one of the most serious decisions courts make. As noted by the United States Supreme Court, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." Santosky v. Kramer, 455 U.S. 745, 787 (1982). Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger and of "severing forever all legal rights and obligations of the parent." Tenn. Code Ann. § 36-1-113(l)(1) (2010).

A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995). While this right is fundamental, it is not absolute. The State may interfere with parental rights through judicial action in some limited circumstances. Santosky, 455 U.S. at 753; In re Angela E., 303 S.W.3d at 250.

Our Legislature has identified those situations in which the State's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth the grounds upon which termination of parental rights proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. ...


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