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In re Kaiden T.

Court of Appeals of Tennessee, Nashville

December 15, 2014

IN RE KAIDEN T.

Assigned on Briefs September 2, 2014

Appeal from the Chancery Court for Overton County No. 13-CV-4 Ronald Thurman, Chancellor.

Andrea McLerran Ayers, Livingston, Tennessee, for the appellant, Nicole W. [1]

Michael Savage, Livingston, Tennessee, for the appellees, Brandon and Valerie T.

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

OPINION

FRANK G. CLEMENT, JR., JUDGE.

Brandon T. ("Father") and Nicole W. ("Mother") are the biological parents of one child, Kaiden T., born in November 2005. Following the child's birth, Mother had primary custody and Father had visitation every other weekend and Thursdays on his off weeks. When the child was a year old, Mother and Father agreed to joint custody, alternating weekly visitation, which arrangement remained in effect until March 2010, when Mother was arrested for selling drugs. Soon thereafter, the parents entered an agreed order whereby Father was granted custody and Mother's contact with the child was restricted to supervised visitation, to be coordinated by the parents; she was also allowed visitation at the child's sporting events and two weekly telephone calls at 7:00 p.m. on Tuesdays and Thursdays. Because Mother was unemployed, the issue of child support was reserved for further hearing.[2]

Since March 2010, the child has resided with Father and Valerie T. ("Step-mother"), who have been married for eight years, in Livingston, Tennessee. Mother has resided with her fiancé, Ricky Jones, at his home in Pleasant Shade, Tennessee, since 2012.

On January 30, 2013, Father and Step-mother filed the instant petition to terminate Mother's parental rights and for step-parent adoption, based on abandonment for willful failure to visit and for willful failure to support.[3] Petitioners alleged that Mother had either failed to visit the child altogether or engaged in only token visitation and that Mother had never paid child support. They further asserted that it was in the child's best interest to terminate Mother's parental rights and to allow Step-mother to adopt the child "and legally become said minor child's mother with all the duties and responsibilities attached to said relationship." The trial court appointed counsel to represent Mother and a Guardian Ad Litem to represent the interest of the child.

A one-day trial was conducted on January 27, 2014, with Mother, Father, and Stepmother testifying. Also testifying, was a friend of Mother's and the child's teachers and karate instructor. The testimony regarding Mother's relationship with the child and her visitation with the child pursuant to the 2010 order revealed that she was entitled to visit the child at the child's sporting events and other supervised visitation that could be arranged at the convenience of the parents; however, Mother attended less than ten sporting events since 2010, even though the child consistently attended karate lessons on Tuesday afternoons at the same time and location. Father testified that Mother missed "hundreds" of the child's sporting events, and the last time she attended a karate lesson, pre-petition, was in early 2011. Mother's last "scheduled" visitation was Christmas 2010. Father and Step-mother testified that they arranged for Christmas visitation in December 2011 at a local McDonald's but Mother failed to attend. Mother, for her part, testified that she does not remember scheduling visitation with the child in December 2011.

Mother testified that every time she told Father or Step-mother that she planned to visit the child at karate, they would not be there. Step-mother testified that there had indeed been times when the child missed his karate class and she did not notify Mother, but Stepmother denied that she had ever intentionally discouraged a relationship between Mother and the child. Mother described two specific requests for visitation with the child, which never transpired. One was in September 2011 when her mother came to visit and arranged for breakfast with the child, but Father and Step-mother canceled at the last minute. The second was a request in November 2013, when her father was coming to visit. Mother claimed she texted Step-mother a request, but did not receive a response. Notably, however, neither of these requests were during the four months preceding the petition, and Mother provided no other instances of being denied visitation requests either during or before the relevant four-month period.

The 2010 custody order also allowed two telephone calls per week with her child on Tuesdays and Thursdays at 7:00 p.m., and Mother was to initiate the calls. Mother testified that she called her son regularly, and also set her phone alarm to remind her to call. Mother testified that she initiated "several calls" during the four months preceding the petition, but that the majority of the time, her calls would go unanswered and unreturned. Step-mother and Father both testified that, in the beginning, they were cooperative with the telephone call schedule, but that Mother's calls to the child were sporadic at best. Over time, Father and Step-mother became concerned when Mother spoke with the child and promised visitation, but would then "no-show, " and when she promised gifts to the child, but never followed through. Both Father and Step-mother testified that they felt Mother's empty promises were taking a toll on the child. Step-mother testified that after the child spoke with his mother, he was very emotional, nervous, bit his nails, fidgeted, and had sleeping problems. Father testified that to protect his son, he gave Mother an ultimatum. He told Mother that if she did not stop making promises upon which she did not deliver, he would end the scheduled calls. Mother, conversely, denied promising her son gifts or that she would be at visitation and then not appear. After Mother failed to appear for Christmas visitation in 2011, Father and Stepmother decided it was necessary to avoid Mother's court-ordered telephone calls, and they did not allow Mother to converse with the child via telephone, until after the petition was filed.

With respect to child support, it was undisputed that Mother has never paid support and that she is not disabled. Mother testified that she never received notice of the child support hearing, did not attend or have representation at the hearing, and was not even aware that child support had been ordered until June of 2013. Mother further testified that she has no income and that she has not worked since she left her position at a gas station in 2011, other than helping her fiancé, Mr. Jones, with his chickens. Mother testified that she is supported by Mr. Jones, that they share one vehicle, and that they are living on a shoestring budget, earning just enough money to cover their living expenses.

Mother stated she is unemployed because she does not have a driver's license. Mother lost her license after she received a $5, 000 fine in 2008; her license remains suspended until the fine is paid in full. Mother testified that her father and Mr. Jones have helped her pay the fine, and that the balance owing as of trial was $500. She further testified that she intends to pay child support for the child once she regains her license and is able to work.

In the trial court's ruling from the bench, the court stated:

Well, when we look at the statute, Section 36-1-213, and whether or not there has been abandonment by [Mother], . . . the relevant time frame is what transpired in the four months preceding the filing of the petition, which was [January] 30th, 2013.
What the statute requires is a showing by a standard of clear and convincing evidence that at that time the parent did not willfully visit or provide support. . . . By her own testimony, she hasn't provided support. She has not provided any support. She is not disabled and works for her boyfriend and fiancé. There is no evidence in the record that she couldn't have. Really, I don't think she tried to get a job. I know she has a problem with not having a driver's license, but there is no substantial evidence to show she has made any effort to get a job and pay the child support.
I know she has testified she wasn't aware of the court date setting child support. I believe she was aware. She had been placed on notice by her attorney, Mr. Randolph, at the time, even though she testified she didn't tell her attorney at the time where she changed addresses, but for this court to set child support, be that as it may, under the state law of the State of Tennessee, the parents are obligated to take care of a minor child.
It is not fair for anybody to carry the whole load. Both [Father] and [Mother] brought the child into the world. They both have an obligation to take care of the child. It is clear that [Mother] hasn't provided that support. I find, based on the testimony, that [Mother] works with her boyfriend raising chickens, and if they earn income that way and have survived, she has not met her obligation to pay child support.
As far as visitation, that has been somewhat sporadic. I think, as far as the cutoff phone calls by [Father and Step-mother], they don't have the right to modify court orders. The only person that has a right to modify a court order would be myself or the appellate court. They testified they did so in the child's best interest.
I find that [Mother] has not visited the child during that period of four months preceding the filing of the petition to terminate her parental rights. I really can't say that she made an effort to try to visit. The fact is that [Mother] did not come to court to tell me about the cut-off phone calls. If I found out anyone had violated a court order, I ...

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