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In re Lyric J.

Court of Appeals of Tennessee, Nashville

December 16, 2014

IN RE LYRIC J.

Session Date October 21, 2014

Appeal from the Chancery Court for Smith County No. 2012AA5 Charles K. Smith, Chancellor

Laura A. Stewart, Nashville, Tennessee, for the appellant, Lance A.

J. Ray Akers, Mt. Juliet, Tennessee, for the appellee, Veronica J.

Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and, Brandon O. Gibson, J., joined.

OPINION

ANDY D. BENNETT, JUDGE

Background[1]

Erica J. ("Mother") lived in Davidson County, Tennessee. She gave birth to Lyric J. ("Child") in December, 2011, and died two days later. Appellant, Lance A. ("Father"), lives in California and was not present for Child's birth. Appellee, Child's maternal grandmother ("Grandmother"), who lives in Smith County, Tennessee, received temporary custody of Child from the Tennessee Department of Children's Services ("DCS") because Father had not yet been declared the legal father. On January 5, 2012, DCS held a Child and Family Team Meeting at which Father was advised that he could not receive custody because there was no proof that he was Child's biological father. Father was also advised to take a DNA test, which he took that same day.

A hearing was held in Davidson County Juvenile Court on February 27, 2012, at which Father was advised that he should retain a lawyer. Father had not yet filed the DNA test report. The juvenile court magistrate granted Grandmother custody of Child at the final custody hearing on May 21, 2012. Father did not attend the May hearing and did not file an intervening petition for custody between the two hearings. Father later hired an attorney and appealed the custody order to the juvenile court judge. These proceedings were suspended when the termination and adoption petition was filed in Smith County.

Starting in the summer of 2012, Father would call Grandmother about once a month to talk to Child and attempt to set up a visit. Grandmother would let Father talk to Child, but she said she was afraid to let Father visit because he had previously told her that he was going to "come down with his boys and . . . take his baby." On October 12, 2012, Grandmother filed a petition in Smith County Chancery Court to terminate Father's parental rights and adopt Child, and on October 15, Father filed a counter petition to establish paternity and request custody. The case was tried on October 11, 2013.

At trial, Father presented a copy of the DNA test results and both parties agreed that Father was the biological father of Child. Grandmother testified that Father had not visited or provided any support for Child during the four months preceding the filing of the petition. She also stated that Father could not reach her at times because she often did not have a working phone, but she never went more than two days without getting a new one. One of the times she spoke with Father about Child was while she was shopping. Grandmother testified that she hung up on him because it was not a good time for her to talk and, since then, she and Father "had some animosity" between them. As a result, she felt threatened by Father and was only comfortable allowing supervised visits in public places. The one visit Father had with Child was at Panera Bread in October 2012, while Grandmother, her son, and her son-in-law were present. The visit lasted about an hour.

Grandmother testified that Father cancelled two visits they tried to schedule. One visit was to be at Wal-Mart so Father could buy Child some clothes and give her some money. Grandmother suggested that Father give the money to his lawyer, who could then give it to Grandmother's lawyer. She also stated that, once court proceedings began, she had no problem letting Father visit and stay with her when they were not in court. However, when they were in court, she would tell Father that visiting was not a good idea.

Finally, Grandmother testified that she and her nine grandchildren had a great relationship with Child and that she provided Child with everything she needed. Grandmother's son-in-law, Mother's former best friend, Grandmother's neighbor, and Mother's former colleague from work all testified that Grandmother had a great relationship with Child as well. Grandmother explained that Child got Social Security as a result of Mother's death, had her own insurance, and that Grandmother's family sometimes helped her take care of Child.

Father testified that he was fully disabled as the result of a motorcycle accident from 2006. He was on disability, lived in his mother's guest house,[2] and was behind on child support obligations for his four other children, two of whom had special needs (one could not walk or speak and another was autistic). Father had visitation with his other four children during a month of summer vacation, a month during winter vacations, and every other weekend. When Father had his children with him, he cooked, cleaned, and did everything for them on his own.

Father testified that he did not cancel the visit with Child at Wal-Mart, as Grandmother testified. Instead, Father testified that it was never set up despite multiple attempts by him and his lawyer to arrange it. Despite his failure to pay child support, Father did provide Mother with an Electronic Benefit Transfer ("EBT")[3] card prior to her death. The card was intended for Mother to buy things for Child, and, after Mother's death, the card was transferred to Grandmother through Grandmother's counsel. Father stated that he was familiar with California law but did not understand Tennessee law, which is why he never tried to get custody of Child prior to May 2012.

Father further testified that he was "full of emotion" when he found out about Child. He was happy to have a child but sad to lose Mother. Grandmother did not dispute this. Father also testified that, before Mother's death, he purchased diapers, a TV stand, a computer stand, and a life insurance policy for Mother and Child. In addition, he repainted and rebuilt Mother's fireplace mantle and did other "little things around the house." Father said he tried to set up visitation with Child, but before October 2012, he was often unable to reach Grandmother. When he did, she would either tell him that it was not a good idea for him to visit or to wait until the next court date. Father said that every time he tried to set up visitation after October, Grandmother told him it was not a good idea. During Grandmother's testimony, she agreed that it would be unreasonable for someone who is trying to visit his child to fly three thousand miles and stay in a hotel without a definite visit scheduled.

In regard to his income, Father testified that he lived in a home with his mother but also owned another home that he rented out. However, given the real estate downturn, he only broke even. Father testified that he might be able to sell that home for forty or fifty thousand dollars "after everything settled." He also said that he and Child were beneficiaries of the life insurance policy he bought for Mother, but it had not been redeemed because he had not been to Tennessee recently and a doctor needed to sign off on the policy. Father also needed the death certificate, which he was unable to obtain before he was recognized as Child's father.

Two of Father's other children testified that they loved Father, he took care of them, kept them safe, and they had fun with him. At the end of the proceedings, Child was brought into the court and allowed to interact with Father and his siblings. Although it was not at issue, the trial court judge determined that, based on their interaction, Father would be allowed unsupervised visitation; all of the children seemed outgoing and intelligent, and there did not seem to be any need for supervision.

The trial court eventually held that Father's parental rights should be terminated based on Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii) and (iii), and the court established a parent and child relationship between Grandmother and Child based on Tenn. Code Ann. § 36-1-121 (as amended). The court did not accept Father's reasons for not paying child support and not visiting more often. The court found that Father had the financial means to hire a lawyer sooner and support Child for the four months preceding the filing of the petition, but that he willfully chose not to. The court also found that Father did not seek reasonable visitation with Child or visit her at all for the four months preceding the filing of the petition. The court held that Father ...


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