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In re E.L.R.

Court of Appeals of Tennessee, Knoxville

December 1, 2014

In re E.L.R.

Assigned on Briefs October 13, 2014

Appeal from the Chancery Court for Loudon County No. 12053 Frank V. Williams, III, Chancellor

Ian McCabe, Maryville, Tennessee, for the appellant, S.R.

Andrew Beamer, Knoxville, Tennessee, for the appellant, D.M.S.

Loren E. Plemmons, Loudon, Tennessee, for the appellee, E.W. and T.W.

Julia Spannaus, Maryville, Tennessee, Guardian ad litem, for the Child.

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

On September 4, 2012, Grandparents filed a petition to adopt the Child. It included a request that Mother's and Father's parental rights be terminated. The petition named Father as the Child's alleged father. Trial on the petition was held on December 20, 2013. At the outset, Father stipulated, based on the results of DNA testing, that he is the Child's biological father. At the time of trial, the Child was six. He had been in Grandmother's custody for more than five years.

The Child was born to Mother in October 2007. At the time of the Child's birth, Mother was unmarried. In March 2008, Mother left Grandmother's house with the Child, then four months old. Mother was gone for a month before her family tracked her down. Grandmother received a tip that Mother was staying in Knoxville at a house off Western Avenue. The tip came from a man who said he had gone to that location to buy crack cocaine. The man said he had seen Mother, but not the baby. Grandmother; the Child's maternal great-grandmother (M.S.K.); and Mother's younger sister (N.N.), went directly to the house and found Mother and the Child. According to Grandmother, the Child was in "pretty bad shape." He had no clothes on, had "blisters all over his bottom, " and "needed attention." By Mother's account, she was not living in a "crack house, " but with a friend as a live-in babysitter. Mother said Grandmother and M.S.K. arrived carrying guns and accused her of child neglect. According to Mother, the Child's clothes were in the washer and she had plenty of formula and supplies for him. On cross-examination, Mother admitted she had never before alleged that Grandmother and M.S.K. took the Child from her at gunpoint. She finally conceded that they took the Child with her consent. Mother added, "it's his grandmother. I didn't think anything of it." The following month, Mother gave Grandmother custody of the Child. The consent decree reflected a "temporary" custody change as the result of Mother's inability "to care for [the Child] at this time." Mother said she later requested custody, and Grandmother told her she would return the Child when she felt Mother could care for him. Mother denied any intent to give up her parental rights, but admitted she never took steps to regain custody.

The testimony of Grandmother and Mother regarding Mother's contact with the Child differed sharply. Grandmother noted that, early on, Mother moved from state to state and saw the Child for brief visits when she returned to Tennessee. More recently, Mother only came over on special occasions and whenever she wanted money or something from Grandmother. Grandmother said she was aware that Mother used drugs and for that reason would not allow Mother to visit the Child unsupervised. Mother testified that she always visited regularly, except when she was working or out of town. She testified to visiting weekly, "at the very least, " during 2012. Mother admitted to using crack cocaine, but said it started after Grandmother took the Child from her and she became depressed. Mother testified that she had "self-detoxed" and not used any drugs since August 2008, but then she added that she had not smoked marijuana in the past 10 months. As to child support, Grandmother testified that Mother was employed "off and on, " but paid her only $40 in child support before she filed for adoption. Mother admitted she did not give money directly to Grandmother, but said she supported the Child in other ways.

The subject of Father's paternity encompassed much of the proof at trial. Mother testified there were two potential fathers, a man named M.P., and Father. Other witnesses testified Mother had initially named a third man, R.N.[1] According to Grandmother, DNA tests in 2008 and 2009 ruled out the other men. Mother never told her that Father was among the potential fathers. M.S.K. recalled that in 2007, Father came to pick up Mother. M.S.K. overhead Father ask Mother if she was pregnant, to which Mother replied that she was. When Father asked if it was his baby, Mother told him, "you're the only one that I've been with, so it must be yours." Grandmother knew Father because he and Mother had dated in 2002 during high school. According to Father, Grandmother had disliked him since then. In 2009, Grandmother learned that Father's mother (Mrs. S.) had taken pictures of the Child outside his daycare. The two women talked and discussed the possibility that Father was the Child's father. Grandmother invited Mrs. S. to have DNA testing of the Child and Father, but heard nothing more from her or Father. DNA testing eventually ruled out the other men. N.N. testified that Mother initially said R.M. was the father, then told her it was Father. A.W., a former girlfriend, met Father in 2009. She testified that Father told her then that he might be the Child's father.

Mother denied ever telling Father that the Child was his or discussing a DNA test until 2012, but admitted that, years earlier, she told Mrs. S. and Father's sister there was a "slight chance" that he was the father. In mid-July, Father found Mother via Facebook and she told him DNA tests showed that none of the other men were the father. Mother said Father never provided support during or after the pregnancy because he had "no clue" that the Child was his. She said Father came to see her when the Child was eighteen months old; when he asked if the Child was his, she lied and told him there was "no possibility." For his part, Father conceded that he "always knew it was a possibility" that he was the Child's father – even though he and Mother had intercourse only once, around the time of conception. Father testified he first asked Mother about paternity in 2009, and Mother told him they were trying to get a DNA test on another man. Father told Mother that if that test proved negative, he would also like to be tested. He moved away to attend school and heard nothing back from Mother.

On July 30, 2012, Father went to Grandparents' home, unannounced, to discuss the Child and stayed for nearly three hours. According to Grandmother, Father told them that he was "there to see [his] son." Grandmother thus learned, for the first time, that Father believed he was the Child's father. According to Grandmother, during the visit, Father told her that Mother had first told him when she was pregnant that the Child was his. Grandmother said when she asked what took Father so long to come tell her, Father said that he had been away at college and "just couldn't afford a DNA test." Both parties agreed that the visit went well, but as Father was leaving, he said he wanted full custody if his paternity was confirmed. This prompted Grandmother to file for adoption. On September 12, 2012, Father filed a petition to establish paternity. On March 1, 2013, Father underwent DNA testing. The results indicated a 99.9996% probability of his paternity.

In October 2012, Mother and Father visited the Child at school without Grandmother's permission. The Child came home and told Grandmother that Mother and Father were planning to come back that night and take the Child with them. As a result, Grandmother obtained a restraining order. In December 2012, the trial court modified the order to grant Mother and Father visitation limited to twice a month. Grandparents said the visits generally went well, but always led to trouble afterwards—the Child experienced nightmares in which he feared that a "big monster" was coming to take him away, and became very clingy and disobedient.

In June 2013, Mother and Father appeared for a child support hearing; they were ordered to pay $202 and $208 per month, respectively.[2] In July 2013, Father and Mother were married. In November 2013, a second child was born to them.

At trial, Mother testified that, for the past two months, she and Father had lived in a trailer on property they bought in Sweetwater. On cross-examination, Mother conceded that Mrs. S. was buying the property and she and Father leased the trailer from her. Mother was fired from her last job in May 2013. Following the birth of her second child, she had recently began searching for employment. The family received food stamps and other government assistance. Father worked sporadically repairing motorcycles.

Grandmother lived at the same address in Loudon since 1999. In 2010, Grandmother married T.W. He was aware that Grandmother had custody of the Child and was "absolutely cool with that." He joined Grandmother's adoption petition. He loved the Child and wanted him in his life. In addition to Grandmother, T.W., and the Child, Mother's two sisters, ages 24, and 21, also lived in the home. Grandmother testified that the Child was a big part of their family and she "loved [him] as if he was [her] own."

At the conclusion of the hearing, the court announced its bench ruling finding in favor of Grandparents "on all issues in all respects." More specifically, the court found, by clear and convincing evidence, that (1) both Mother and Father abandoned the Child by failing to support and visit him and (2) termination of Mother's and Father's rights to the Child was in the Child's best interest. On January 31, 2014, the court entered a final order terminating both parents' rights to the Child and approving his adoption by Grandparents. Mother and Father each filed a timely notice of appeal.

II.

Mother and Father each presents the same issues for our review, restated by us as follows:

1. Whether the trial court's finding that Mother and Father willfully abandoned the Child by failing to visit and support him in the four months immediately preceding the filing of the petition for adoption is supported by clear and convincing evidence.
2. Whether the trial court erred in its determination that termination of Mother's and Father's parental rights is in the Child's best interest.

III.

With respect to parental termination cases, this ...


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