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In re Malaysia C.

Court of Appeals of Tennessee, Nashville

February 10, 2015

IN RE MALAYSIA C.

Assigned on Briefs January 27, 2015.

Appeal from the Chancery Court for Williamson County No. 1619A James G. Martin, III, Chancellor.

Raquel Avina Abel, Franklin, Tennessee, for the appellant, M.C. [1]

W. I. Howell Acuff, Cookville, Tennessee, for the appellees, S.J.J.G. and K.R.G.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE.

I. Background

The child at issue in this case, M.J.C., was born in December 2010 to Appellant M.C. ("Mother").[2] Mother has one older child who is currently in Mother's custody. Custody of the older child is not at issue in this appeal. M.J.C.'s biological Father, M.L.'s, parental rights were terminated by the same order that terminated Mother's parental rights. However, he did not appeal the termination of his parental rights and is not a party to this appeal. Accordingly, our discussion will address only the facts, procedure, and findings relevant to termination of Mother's parental rights.

The prospective adoptive parents, S.J.J.G. and his wife, K.R.G. (together "Appellees") first met the child in June 2012. At that time, Appellees had completed a home study, and were hoping to adopt a child. Appellees have two biological children. S.J.J.G. is the founder of a software company, and he works primarily from home, traveling once or twice a week. K.R.G. does not work outside the home.

In January 2012, Mother was evicted from public housing for fighting. Mother testified that she moved from place to place in the months following her eviction. Due to these unstable circumstances, sometime before June 2012, Mother placed the child with Mother's cousin, I.M.

I.M. and Appellees were acquaintances, who had mutual friends. K.R.G. and I.M. were also friends on Facebook. I.M. posted on Facebook that she was caring for the child, and that it was difficult because I.M. was also caring for her own children. K.R.G. contacted I.M. and suggested that Appellees take the child for a few days to provide a "break" for I.M., and I.M. agreed. Between June 2012 and August 2012, the child stayed with Appellees on two or three occasions, and a bond began to develop between Appellees and the child. I.M. sent Mother photos of the child in the Appellees' home, and this is how Mother came to know that the child was staying with Appellees. In August 2012, K.R.G. called Mother to say that the Appellees were willing to take custody of the child. Mother agreed to the arrangement, and, on August 28, 2012, the child came into Appellees' home, where she has remained since that time.

In September 2012, Appellees and their attorney met with Mother to discuss Appellees' desire to adopt the child. There is some dispute in the record as to where this meeting occurred. Also, as discussed in greater detail below, there is some dispute as to whether Mother understood that the discussion involved more than just a temporary custody arrangement. Regardless, on September 12, 2012, Mother signed a petition for termination of her parental rights and petition for adoption in favor of the Appellees. The petition specifically states that:

[Mother] joins in this Petition for the purpose of providing her consent to the adoption and for purposes of terminating her parental rights to [the child].
. . .[Mother] understands that the entry of an order confirming parental consent, without revoking the parental consent prior to entry of such order, will terminate her parental rights to the child forever and she will have no legal rights to the custody, control, or to visitation with the child in the future.

Mother's signature on the petition was notarized, and the document was filed in the Williamson County Chancery Court. On September 21, 2012, Appellees filed a motion for partial guardianship. The trial court granted their motion by order entered on September 26, 2012.

Text messages sent between Mother and K.R.G. in October 2012 (which were admitted as Trial Exhibit 4) indicate Mother's desire to have the child remain in Appellees' home:

[From Mother to K.R.G.] I'm not gone [sic] change my mind[.] I know [the child is] in good hands with [K.R.G. and S.J.J.G.]. And I know your kids love her as well. . . .
I just want her to[] come visit and stay the night with me sometimes. . . .

However, sometime in December 2012, Mother contacted Appellees, asking that the child be returned to her custody. Appellees denied Mother's request, and the relationship between Mother and Appellees deteriorated.

On December3, 2012, Appellees filed an amended petition for termination of parental rights and petition for adoption. Although Mother is listed as a "Co-Petitioner, " she did not sign the amended petition, which contains only the signature of Appellees' lawyer.

On January 14, 2013, the trial court entered an order, appointing a guardian ad litem to represent the child. On March 14, 2013, the guardian ad litem filed a motion requesting that the trial court review the status of the case. Therein, the guardian ad litem specifically requests that the court "assure that all statutory requirements have been met and due process measures have been made. . . ." The guardian ad litem further explained:

[O]n October 2, 2012, an order of partial guardianship was entered ex parte with the legal effect of taking the mother. . .out of any further legal proceedings, and leaving her without legal recompense for a failure to provide statutory notice of a consent hearing; failure to receive the time or notice of her right to revoke her consent to such proceedings prior to her participation in a consent hearing; failure of her being questioned in chambers or in court regarding her understanding of her parental consent in this matter; failure of her waiver of counsel of her waiver of her right to receive social counseling with regards to her parental consent; failure of her waiving her right to such notice, hearing, and revocation time frame; and without her ever presenting herself before the Court in this matter at any time. The mother claims she never received a copy of the ex parte order, and she was not certified in the order as having been provided a copy of it. The legal effect of the partial guardianship order took the mother out of having standing to contest any further proceedings, and the time frame to appeal the partial order of guardianship has long expired.

The guardian ad litem also noted that Mother had not consented to the amended petition to terminate her parental rights. Thereafter, a uniform affidavit of indigency was entered on behalf of Mother; on April 8, 2013, a lawyer was appointed to represent Mother in these proceedings.

On May 2, 2013, Mother, through her lawyer, filed a petition to revoke her consent for adoption and a petition for custody and parenting time with the child. In her petition, Mother avers that she "did not freely or voluntarily sign the consent for adoption, nor was it signed with full knowledge of its consequences." Furthermore, Mother's petition indicates that she "revokes her consent to the adoption of her minor child. . . ." On July 1, 2013, Appellees filed an answer to Mother's petition, wherein they aver, in relevant part, that:

[Mother] met with [Appellees] and their counsel prior to the petition for termination of parental rights and petition for adoption being drafted. At that meeting[, Mother] was informed that [Appellees], at their expense, would provide he[r] with her own legal counsel if she had any concerns about the adoption. She declined to have counsel retained for her. At that meeting, with [Mother's] agreement, it was decided that she would join in the petition and not surrender her rights until the final hearing, thus protecting her rights in the event, and only in the event, that the rights of the birth-father could not be terminated. The next week, [Mother] again met with [Appellees'] counsel, this time at the courthouse, to review and sign the petition for termination of parental rights and for adoption, counsel again explained that termination of her rights would not be addressed until the birth-father's rights had been terminated, but that the child would be with the [Appellees] in the meantime. Counsel provided her the original of the petition to review and allowed her time to read it through carefully. When she had finished reviewing the document, counsel asked if she had any questions or concerns. She affirmed that she was in agreement with the document. She then signed the petition for termination of parental rights and petition for adoption before a notary.

Concurrent with their answer, Appellees filed a cross-petition for termination of parental rights and petition for adoption, in which they aver that Mother has "abandoned the child . . . [in that she] has provided no support for this child, or in the alternative has provided no support since August of 2012." Appellees further aver that termination of Mother's parental rights is in the child's best interest. On July 26, 2013, Mother filed an answer to the cross-petition for termination of her parental rights, wherein she specifically denies that she has abandoned the child by willful failure to pay support.

On September 19, 2013, the trial court entered an "Interim Order, " which states, in relevant part that Mother's revocation of her consent to the adoption of the child "is well taken . . . and all portions of the petition for termination of parental rights and petition for adoption containing her consent are hereby voluntarily withdrawn and dismissed due to the revocation of her consent for the adoption." The order places temporary custody of the child with Appellees, and allows Mother supervised visitation. All other matters were reserved for full hearing.

The cross-petition to terminate parental rights was heard on March 12 and 13, 2014. On April 29, 2014, the trial court entered its memorandum and order. Therein, the court terminated Mother's parental rights on the ground of abandonment by willful failure to provide support for the child, and upon its finding that termination of Mother's parental rights was in the child's best interest. Mother filed a timely notice of appeal. Based upon the adjudication of indigency, a lawyer was appointed to represent Mother in this appeal.

II. Issues

Mother raises five issues for review as stated in her brief:

1. Whether there is clear and convincing evidence to support the termination of parental rights for abandonment by willful failure to support?
2. Whether the Court can terminate parental rights for abandonment for willful failure to support the child where the parent never received notice that she had a duty to pay support and that the failure to support could result in the termination of parental rights?
3. Whether the aggregate of the evidence supports a finding of willful failure to pay support where the parent has significant limitations that affected her testimony and ...

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