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In re Noah B.B.

Court of Appeals of Tennessee, Knoxville

March 12, 2015

IN RE: NOAH B.B.

Assigned On Briefs January 23, 2015

Direct Appeal from the Chancery Court for Hamilton County No. 13A012 W. Frank Brown, III, Chancellor

Leah L. Granger, Hixson, Tennessee, for the appellant, Amy S.

Charles W. Wheland, III, Chattanooga, Tennessee, for the appellees, James B. and Kristi B.

BRANDON O. GIBSON, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S., and KENNY Armstrong, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE

I. Facts & Procedural History

Noah B. was born in July 2010. His parents, James B. ("Father") and Amy S. ("Mother"), were married at the time. In early February 2011, when Noah was a few months old, Father and Mother were involved in a domestic dispute. The argument centered on Mother's prescribed medications, which, at the time, included Xanax, Adderall, and either hydrocodone or Percocet. Mother accused Father of hiding or taking her medications, and she ultimately struck Father in the head. The police were called, and Mother was criminally charged with domestic assault and resisting arrest. Due to another incident that occurred days later, Mother was also criminally charged with harassment. Father and Mother separated, and Mother moved to Chickamauga, Georgia to reside with her mother, stepfather, and sister.

On February 22, 2011, an ex parte order of protection was entered by the Circuit Court of Hamilton County, Tennessee, which prohibited Mother from coming about or contacting Father or Noah. An agreed supplemental order was entered regarding visitation, which provided that Father would have temporary primary residential custody of Noah, and Mother would have supervised visitation two days per week, with the visitation to be supervised at all times by Noah's grandparents. Communication between Mother and Father was to occur through Noah's maternal grandfather, who would also transport Noah to and from visitation. The agreed order provided that Mother's visitation would begin when she "produces documentation to the petitioner from her treating licensed physician stating that she is currently receiving treatment and is able to properly care for the minor child during her visitation." Mother did not produce such documentation, and consequently, she had no visitation with Noah from March to June 2011. However, during that time, Mother was charged with six additional counts of harassment, stalking, and violating the order of protection.

In July 2011, a second agreed order was entered, providing that the ex parte order of protection would remain in full force and effect. The order provided that Mother would have supervised visitation with Noah from 8 a.m. to 6 p.m. on Saturdays and Sundays, under the supervision of Mother's mother.[1] In accordance with this order, Mother had one supervised visit with Noah on a Saturday in July 2011, around Noah's first birthday, but she failed to return Noah to Father at the designated time that evening. Instead, Mother took Noah to the police station in an attempt to have Father charged with child abuse due to unexplained bruising. Noah was returned to Father, and no criminal charges were filed. However, Child Protective Services ("CPS") became involved and investigated Father's home. CPS determined that Father's home was safe and that Noah was not in imminent danger. After extensive testing, doctors determined that Noah bruises easily due to an iron deficiency. CPS recommended that Mother's supervised visits take place at the office of the Tennessee Department of Children's Services ("DCS"). Mother had two supervised visits at the DCS office in late July. These were Mother's last visits with Noah.

Mother and Father were divorced by decree in August 2011. Both parties were represented by counsel. Father was named primary residential parent of Noah. The parties agreed to a parenting plan that provided several "phases" of supervised visitation for Mother. First, she would complete a phase of supervised visitation with Noah, one hour per week, at the local DCS office. If Mother received approval from DCS, she would begin the second phase of supervised visitation, which would include daytime visits on Saturdays and Sundays under the supervision of Mother's mother. If this supervised visitation was successful for a period of three and a half months, and Mother also completed a full mental health evaluation and avoided any violations of the order of protection, she would be permitted overnight weekend visitation with Noah, but only under the supervision of the maternal grandmother.

Despite these provisions, Mother did not have any further visits with Noah after the entry of the divorce decree. DCS informed Mother and Father that it was closing its file and would not supervise visitation. DCS referred Mother and Father to "Four Points, " a center in Lafayette, Georgia that specialized in supervised visits, but Mother never contacted the center to arrange the visitation.

Father began a relationship with Kristi B. ("Stepmother") sometime around September 2011. Mother was charged with an additional count of harassment in November 2011. At a hearing on the order of protection in January 2012, Father announced in open court an oral notice of voluntary dismissal. Therefore, the court entered an order of dismissal of the petition for order of protection on January 30, 2012. All of the criminal charges against Mother had previously been "bound over" without a hearing. On February 22, 2012, all of the criminal charges were dismissed, with the exception of the most recent harassment charge, because no one appeared to prosecute the charges.

Noah turned two in July 2012; he had not seen Mother since July 2011. A hearing on child support was held in October 2012. Mother failed to appear, but she was ordered to pay child support of $286 per month. Father and Stepmother married in December 2012. The final harassment charge against Mother was dismissed in March 2013.

On April 15, 2013, Father and Stepmother filed a petition for adoption, seeking to terminate Mother's parental rights in order to enable Stepmother to adopt Noah.[2] When the petition was filed, Mother had not visited Noah for roughly twenty-one months, and she had never paid child support to Father. As a result, the petition sought termination of Mother's parental rights on the ground of abandonment by willful failure to visit and willful failure to support, pursuant to Tennessee Code Annotated section 36-1-113(g)(1) and 36-1-102(1)(A)(i). The petition also alleged that it was in Noah's best interest for Mother's parental rights to be terminated and for the adoption petition to be granted.

Mother filed an answer to the petition and denied that she abandoned Noah. She claimed that Father's "activities" prevented her from seeing Noah. The trial court appointed a guardian ad litem for the child. After Mother's attorney withdrew due to illness, she submitted a uniform civil affidavit of indigency, and the trial court appointed counsel for Mother for the remainder of the proceedings.

The trial court conducted a bench trial on July 30, 2014, during which it heard from five witnesses and received nineteen exhibits. After taking the matter under advisement, the trial court entered a written order terminating Mother's parental rights on August 8, 2014. For reasons that will be discussed in detail below, the trial court found by clear and convincing evidence that Mother willfully failed to visit Noah and willfully failed to support him during the relevant timeframe and, therefore, grounds for termination existed due to willful abandonment. See Tenn. Code Ann. § 36-1-113(g)(1). The trial court also found by clear and convincing evidence that termination of Mother's parental rights was in Noah's best interest. Accordingly, the trial court terminated Mother's parental rights and designated its order as final pursuant to Tennessee Rule of Civil Procedure 54.02. Stepmother's petition for adoption apparently remains pending. Mother timely filed a notice of appeal to this Court.

II. Issues Presented

Mother presents the following issues, as restated, for ...


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