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In re D.H.B.

Court of Appeals of Tennessee, Knoxville

April 23, 2015

In re D.H.B. et al

Session Date: November 20, 2014

Appeal from the Chancery Court for Rhea County No. 1057A Jeffrey F. Stewart, Chancellor

Elizabeth G. Adams, Dayton, Tennessee, for the appellant, J.A.B.

Rebecca L. Hicks, Dayton, Tennessee, for the appellees, J.D.B. and J.M.B.

Andrew S. Cunnyngham, Chattanooga, Tennessee, guardian ad litem. [1]

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

Mother and Father were married in 2005. Two children were born to their union -D.H.B. and B.G.B. (the Children), in 2005 and 2006, respectively. In 2007, Mother and Father divorced. The divorce decree designated Father as the Children's primary residential parent. Mother was granted supervised parenting time at the home of D.K. (Grandmother), the Children's maternal grandmother.[2]

In a harbinger of the future, there are indications in the divorce decree that Mother had a substance abuse problem, e.g., the decree ordered Mother to undergo a hair follicle drug screen and prohibited her from using alcohol or any illicit drugs in the presence of the Children. Later, Mother was granted "standard" visitation with the Children, but her visits were to be supervised by Grandmother. That visitation consisted of one evening a week and every other weekend. Mother was initially ordered to pay $25 a week in child support, increasing to $132 a week effective October 1, 2007. At Father's request, Mother was subject to random drug screens and prohibited from driving with the Children in the car.

For several months after the parties' divorce, Mother exercised her scheduled visitation. In addition, Mother cared for the Children at Father's home when he was at work. This arrangement did not last, however, because, according to Father, Mother frequently failed to show up, forcing him to call Grandmother or someone else to take care of the Children.

Mother began amassing an extensive criminal record. From May 2008 through March 2013, she was arrested and convicted, pursuant to her guilty pleas, of some fourteen offenses including drug and alcohol-related offenses, theft, aggravated criminal trespassing, attempted fraud, and escape. More than once, Grandmother had to call the police to have Mother arrested. In addition, Mother was convicted of multiple violations of probation. Since the divorce, Mother lived rent-free with Grandmother but was in and out of jail. She briefly held a few jobs and worked "under the table" cleaning houses. Mother admittedly failed to pay child support as ordered; the sporadic, partial payments she did make soon left her with a substantial arrearage. In 2012, Mother was hospitalized for several weeks after contracting a staph infection as a result of her drug use.

Petitioners married in 2009. Some six months later, Father adopted Stepmother's two children, who lived with Petitioners and the Children. On March 18, 2010, Petitioners filed a petition to terminate Mother's parental rights so as to facilitate Stepmother's adoption of the Children. The petition "generally" alleged abandonment as grounds for termination. In 2012, Petitioners moved with the four children to Irmo, South Carolina. Father, an electrical field engineer, had secured a new job there after he was laid off by TVA in Tennessee.

After several delays, the bench trial was held on April 24, 2013. At the time of trial, the Children were eight and seven. Mother had last seen them in December 2009, before her incarceration in January 2010. Mother was released from jail in March 2010. The petition was filed a few days later, and Mother had no further contact with the Children from that point forward. She explained that she made calls to inquire about the Children, but Petitioners would not give her any information. According to her, she resigned herself to getting information from Grandmother, who continued to see the Children. For his part, Father testified that Mother never personally contacted him to ask for visitation, but that Grandmother did. Mother did call once, around Christmas of 2009, and provided Father with her new phone number, but left no other messages. Father did not return her call. Father conceded that he was uncomfortable with the Children being around Mother after her criminal issues started. Father permitted Grandmother to continue picking up the Children and visiting with them at her home up until the filing of the petition. He was unaware of how often Mother was present during Grandmother's visits; he believed she was in jail "most of the time." According to Petitioners, Grandmother was welcome any time she wanted to visit the Children and she spoke to the Children every month by telephone. The Children had not received any gifts or items from Mother personally, only from Grandmother.

At the time of trial, Mother, age twenty-seven, had been incarcerated for the past several months, since January 2013, on a violation of probation and charge of possession of drug paraphernalia. She testified her hospitalization was an "eye opener, " and she was determined to change. She admitted she had made many "bad choices" in the past, but said she had plans for the future. Upon her release from jail, she planned to obtain her GED with her family's support and then find a job. She testified that the Children only knew her as a mom, not a thief or a drug addict, and she wanted to be there for them.

Petitioners testified that their family of six was loving and close-knit. The Children called Stepmother "mom" and no longer asked about Mother. Stepmother testified she shared an "extremely strong" relationship with the Children and would "die for them." She testified she wanted to adopt them because she loved them and made sacrifices for them because she wanted to, not because she had to. She felt she brought "normalcy" and "stability" to their lives and planned to be with them every day. Father testified the Children no longer asked about Mother. Records were introduced indicating that the Children were in good standing at school and had no medical issues.

At the conclusion of the trial, the court terminated Mother's parental rights based upon its finding, by clear and convincing evidence, that Mother abandoned the Children by willfully failing to pay child support.[3] By the same evidentiary standard, the trial court further found that termination is in the best interest of the Children. Mother filed a timely notice of appeal.

II.

Mother presents the following issues for our review, as restated slightly by us:
1. Did the trial court err in terminating Mother's parental rights based on abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv) when the petition failed to provide Mother with notice of said ground for termination?
2. Did the trial court err in its decision that termination of Mother's rights is in the best interest of the Children?

III.

With respect to parental termination cases, this Court has observed:
It is well established that parents have a fundamental right to the care, custody, and control of their children. While parental rights are superior to the claims of other persons and the government, they are not absolute, and they may be terminated upon appropriate statutory grounds. A parent's rights may be terminated only upon "(1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent's or guardian's rights is in the best interest[] of the child." Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233, at * 11-12 (Tenn. Ct. App. E.S., filed Oct. 4, 2011) (citations omitted). "As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise." In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004); Tenn. R. App. P. 13(d). Our role is to determine "whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights." Id. at 654. Great weight is accorded the trial court's determinations of witness credibility, which court's findings will not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).

IV.

A.

Mother asserts that the trial court erred in terminating her rights on the ground of abandonment, as defined in Tenn. Code Ann. § 36-1-102(1)(A)(iv), given that the pleadings failed to allege that particular definition of abandonment. Mother argues that, as a result of the deficiency, she "lacked sufficient notice that her parental rights could be terminated based upon that definition of abandonment." Father responds that, assuming arguendo that the notice provided in the pleadings is insufficient, the ground of abandonment by failure to provide support in the four-month period preceding incarceration was actually tried by implied consent.

B.

Tenn. Code Ann. § 36-1-113(g) (1) provides for termination of parental rights on the ground of abandonment as defined in Tenn. Code Ann. § 36-1-102. In turn, Tenn. Code Ann. § 36-1-102(1)(A) sets forth five alternative definitions of "abandonment, " two of which are implicated by the issues before us. The statute provides, in relevant part, as follows:

(1) (A) For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment " means that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
* * *
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, . . . .

Tenn. Code Ann. § 36-1-102(1)(A)(i), (iv).

In the present case, as to grounds, both the original and first amended petitions allege as follows:

Termination of [Mother's] parental rights is sought based upon abandonment as defined in Tennessee Code Annotated ยง 36-1-102 which Petitioners are prepared ...

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