Session Date February 25, 2015
Appeal from the Chancery Court for Shelby County No. CH121354 Walter L. Evans, Chancellor
Bradley C. Ball, Memphis, Tennessee, for the appellants, Joseph C.C. and Shanna R.C.
No brief filed by the appellee, Evan R.W.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.
J. STEVEN STAFFORD, JUDGE
Petitioner/Appellant Shanna R.C. ("Mother") and Respondent Evan R.W. (Father") had one child together, Brookelyn ("the child"), born in 2007. The parties, who were never married, separated in 2009, and Mother took physical custody of the child. At that time, the parties did not seek court intervention to determine any visitation or custody matters. Mother, however, allowed Father to visit the child at the home of the child's paternal grandmother until June 2010, when Mother grew concerned for the child's safety due to a lack of stability in grandparents' home. From June 2010 until the filing of the underlying petition in this case, Father had no visitation with the child and generally paid no support.
On March 26, 2012, Mother and Father appeared in the Tipton County Chancery Court at the request of the Tipton County District Attorney General's office. At this hearing, the Tipton County Juvenile Court entered an agreed order requiring Father to place the child on his health insurance policy. The Tipton County Chancery Court order indicated that it provided only for the medical insurance of the child, and that any further support requirements would be determined by the parties outside of court. On July 10, 2012, Father filed a Petition to Establish Parentage and Visitation with the child in the Tipton County Juvenile Court. The petition asked the court to establish a visitation schedule and set child support.
Mother subsequently married Petitioner/Appellant Joseph C.C. ("Step-Father" and together with Mother, "Petitioners") on August 26, 2012, and the Petitioners filed a Petition to Terminate Father's Parental Rights on August 27, 2012, on the grounds of abandonment by willful failure to visit and/or willful failure to support. The petition asked that Step-Father be permitted to adopt the child. Father was undisputedly served and appeared before the trial court, where he was informed that he had thirty days to obtain an attorney. Father, however, failed to respond to the petition, and a default judgment was entered against Father. Father subsequently filed an answer to the petition on December 31, 2012, and a voluntary acknowledgment of paternity on January 7, 2013. The trial court nevertheless entered an order granting Petitioners' request for termination and adoption on January 7, 2013.
On January 11, 2013, Father, represented by different counsel, filed a motion to set aside the final decree. Father asserted that his delay in responding to the termination petition was due to confusion with his previous attorney. Father also submitted an affidavit denying that he had willfully failed to visit and/or support the child. The trial court eventually granted Father's request to set aside the termination and adoption decree on September 10, 2013. The child was appointed a Guardian Ad Litem, and the parties proceeded to discovery. Thereafter, Father also filed a motion to be allowed some visitation with the child.
Prior to trial, Father filed a Statement of Admissions in the trial court, in which he generally admitted to his lack of visitation, his failure to even attempt visitation, his criminal record, and the fact that he was aware of Mother's address. The trial court held a trial on Petitioners' termination petition on February 27, 2014. Petitioners and their witnesses generally testified that Father made no attempt to visit or support the child during the four months before the filing of the petition, or at any time after June 2010. In addition, the witnesses testified that the child does not know Father and that she is in a happy and stable home with Petitioners.
As can be expected, much of the testimony concerned the circumstances surrounding Father's alleged failure to visit and support the child. Mother testified that she left Father because of his violence and alcoholism, which caused her to question both her own and the child's safety when around Father. Mother testified, however, that despite her concerns, Father still had regular visitation with the child in the months after the parties' separation. Indeed, after the parties' separation, it was undisputed that Mother regularly drove the child from Shelby County to paternal grandmother's home in Tipton County, where Father was permitted to visit with the child. Once Mother grew concerned about the lack of stability in paternal grandmother's home, however, Mother stopped taking the child to the home of paternal grandmother. Mother testified that she never denied any request by Father to visit the child after the child's visits to paternal grandmother were terminated; instead, Father simply never requested visitation with the child or inquired about the child in any way until the filing of his visitation petition in July 2012. Mother submitted phone records to show that Father had not called Mother during the months preceding the filing of the termination petition.
Mother admitted, however, that an incident occurred in January 2011, which caused Mother to obtain an ex parte order of protection against Father on January 5, 2011. Specifically, Mother testified that while she was driving around the area of her home in Shelby County in January 2011, Father saw Mother in her car on his way to stop by Mother's home unannounced. When Father saw Mother driving, he followed her and honked his horn to get Mother's attention. Mother then drove to the nearby police station and Father did not continue to follow her. Mother testified that she was frightened by the incident due to Father's history of domestic violence. Father did not deny that this incident occurred, but characterized it as a friendly visit in an attempt to see the child while he was in Memphis on other, unrelated, business. Father did not deny that he gave Mother no notice regarding his intent to come by Mother's home. The order of protection was dissolved three months after its issuance, and no other orders were ever entered preventing Father from having contact with Mother or the child.
Mother further testified Father paid no monetary support for the child since the parties' separation. In addition, since at least June 2010, the child received no gifts or in-kind support of any kind from Father. Mother admitted at trial that she and the child had moved on from Father, and as such, she did not want support from Father. However, Mother testified that she never refused to accept any support from Father; instead, none was ever offered. Mother also testified that Father eventually placed the child on his health insurance in November 2012, but that she did not receive the child's insurance card from Father until January 2013.
At the time of trial, Father was married with two children and had been employed with Cooper Moving since Fall 2010. Father admitted that in addition to the domestic violence calls during the parties' relationship, the police had also been called to his current home for domestic violence issues. Father further admitted that after the parties' separation, he continued to call Mother, often drunk and angry. Father stated, however, that Mother had "instigated" these episodes.
Father admitted that he had no visitation with the child in the four months preceding the filing of the Petition, although he had a job, a cell phone, and transportation. While Father placed the blame for the lack of visits on Mother's refusal to cooperate with him, Father admitted that he did not contact Mother to arrange visitation at any time after June 2010, other than his ill-advised trip to Mother's home. Father testified that other than his petition for visitation, he did nothing to request visitation in the months leading up to the filing of the termination petition. Indeed, Father's own Statement of Admissions states that he "has not made any attempts to visit with the child since early 2010." Father indicated that some of this failure was due to Mother's move from Tipton County to Shelby County; however, Father admitted in his Statement of Admissions to the trial court that he was aware of Mother's address "[s]ince the parties' divorce." Father also admitted that he never tried to request visitation by sending a letter to Mother's home.
Father characterized Mother's refusal to allow the child to visit with paternal grandmother as due to Father's new romantic relationship; however, Father did not deny Mother's allegations regarding the instability in paternal grandmother's home. Father finally admitted that during the four months preceding the termination Petition, Mother did not "do anything to keep [him] from having visitation" with the child.
Father testified that although he worked full-time earning $35, 000.00 per year, he had never provided support for the child after the parties' separation, other than one alleged payment in 2010. Father admitted that he had a duty to support his child and that he earned sufficient income to provide support for the child. When asked what Father's excuse for his failure to pay support was, Father indicated that it was his belief that visitation and support "go hand in hand, " and that he would not send support without some assurance that he could see his child. Father further admitted that although he was ordered in March 2012 to provide health insurance for the child, the child was not placed on Father's insurance until November 1, 2012, and no health insurance card for the child was mailed to Mother until January 2013. Father testified that the delay in coverage was due to a waiting period imposed by the insurance company, and that he was mistakenly under the impression that the insurance company would send a card to Mother directly.
At the conclusion of trial, the trial court found that Father's visitation petition evinced his intent to establish a relationship with the child. Specifically, the trial court held that by filing the visitation petition, Father "represented his interest and concern for providing support and providing visitation within the four-month period preceding the filing of the Petition for Adoption." The trial court further found that Mother "frustrated the attempt by [Father] to just visit the child." As such, the trial court concluded that Petitioners failed to establish grounds for termination by clear and convincing evidence. On March 24, 2014, the trial court entered an order, incorporating its oral ruling by reference. Petitioners appealed. While the appeal was pending, the trial court also entered an order dismissing Father's request for visitation.
Petitioners present three issues, which are taken, and slightly restated, from their brief:
1. Whether the trial court erred in finding that Petitioners failed to prove, by clear and convincing evidence, that Father abandoned the child by failing to visit and failing to pay support?
2. Whether the trial court erred in finding that Petitioners failed to prove, by clear and convincing evidence, that termination is in the child's best interests?
3. Whether the trial court erred in setting aside the final decree of adoption following a default judgment against Father?
We begin with Petitioners' argument that the trial court erred in setting aside the final decree of adoption that was entered due to Father's default. Rule 55.02 of the Tennessee Rules of Civil Procedure provides: "For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02." Accordingly, Father's request to set aside the order of adoption is governed by Rule 60.02 of the Tennessee Rules of Civil Procedure.
Rule 60.02 provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than a year after judgment, order or proceedings was entered or taken.
Tenn. R. Civ. P. 60.02.
The procedural history of this case is not in dispute. Petitioners filed their termination petition on August 27, 2012, one day after their marriage and mere weeks after Father filed his visitation petition in another county. The summons was served on Father on September 21, 2012. Accordingly, Rule 12.01 indicated that Father had until October 21, 2012 to answer the complaint. See Tenn. R. Civ. P. 12.01 ("A defendant shall serve an answer within 30 days after service of the summons and complaint upon the defendant."). Father did not file an answer to the petition by October 21, 2012. Thus, the Petitioners filed a motion for a default judgment. The record indicates that on November 16, 2012, Father appeared before the trial court, and the trial court allowed Father an additional thirty days to respond to the petition. When Father did not respond within this time frame, the trial court entered an order of default on December 18, 2012. Nearly two weeks later, on December 31, 2012, Father filed an answer to the petition for termination of his parental rights, by and through a Memphis Area Legal Services ...