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In re Gavin G.

Court of Appeals of Tennessee

June 23, 2015

IN RE GAVIN G.

Session May 21, 2015

Appeal from the Chancery Court for Maury County No. A-028-13 Stella L. Hargrove, Chancellor

Cara E. Lynn, Columbia, Tennessee, for the appellant,

Adam G. S. Jason Whatley, Columbia, Tennessee, for the appellees, Rex B. and Amy B.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL McBRAYER, JUDGE

I. Factual and Procedural Background

Gavin G. was born out-of-wedlock in May 2009 to Amy B. ("Mother") and Adam G. ("Father"). Mother and Father lived together during Mother's pregnancy and after Gavin's birth until July 2009, when they ended their relationship. After the parties separated, Father's mother ("Grandmother") watched Gavin during the day while Mother worked. This arrangement continued from July 2009 to May 2010. Father lived with Grandmother during that time, so he saw Gavin most weekdays "if he would make it home before [Mother] would [pick up] Gavin."

In late 2009, when Gavin was about six months old, Mother began a relationship with Rex B. ("Stepfather"). Mother and Gavin began living with Stepfather in spring 2010. Shortly thereafter, Mother enrolled Gavin in daycare, obviating the need for Grandmother to watch the child during the day.

In August 2010, Father petitioned to establish parentage and set visitation. The parties entered into an agreed parenting plan. The plan named Mother as the primary residential parent and gave her 285 days of parenting time. The plan granted Father visitation with Gavin on some holidays and every other weekend, for a total of 80 days per year. Father could only exercise his parenting time under Grandmother's supervision.

Father regularly visited Gavin and spent almost every other weekend with him from August 2010 to December 2011. Father's visitations with Gavin occurred primarily at Grandmother's home. Mother claims Father's last visit with Gavin was on December 24, 2011. Although Father claimed he had visited Gavin since then, he could not recall any particular dates and admitted that if any visits occurred, they were "rare and sporadic."

Father admitted that from December 2011 to December 2012, his addiction to Xanax was "real bad." Father also had legal troubles. Although he was arrested several times for driving with a suspended or revoked license, the charges were dismissed. He was convicted of felony theft in May 2012 and served two months in prison.

In December 2012, Father completed a seven-day detox program and spent thirty days at a treatment facility. In January 2013, he enrolled in a sober living facility. While living at the facility, Father took the time to personally file a motion to lower his child support obligation in May 2013. Father stated that he needed a reduction in child support because: "Changed jobs and financial strain at new job. Moved cities and paying higher rent. New job pays less. Lost previous job, could not find work in Columbia, and had to move to Murfreesboro." Father continued to live at the facility until November 2013. After leaving the facility, Father moved into his own apartment.

Before Father entered detox, Mother and Stepfather married in October 2012. On August 30, 2013, Mother and Stepfather petitioned to terminate Father's parental rights. As grounds, Mother and Stepfather, who intended to adopt Gavin, [1] alleged that Father had abandoned the child by both failing to support and visit him.

A. Proof at Trial

The chancery court conducted a trial on Mother and Stepfather's petition on July 15, 2014. Mother, Stepfather, Father, Grandmother, and a local police officer testified. The parties stipulated to the testimony of Mother's parents and sister, Stepfather's mother, and one of Gavin's teachers, specifically that they would testify to Mother's and Stepfather's loving, strong relationship with Gavin and that Gavin was thriving in their care.

Mother testified that she and Father were completely unable to communicate. She stated that they had almost never had a "normal conversation"-most of their previous conversations had involved Father "cursing, yelling, et cetera." Since they ended their relationship, Mother and Father communicated almost exclusively through Grandmother.

Mother maintained that Grandmother arranged her own visits with Gavin. According to Mother, Grandmother never attempted to arrange visits for Father, except for one request to take Gavin to Father's rehabilitation facility in summer 2013. Mother testified that she would not allow Gavin to visit Father at the rehabilitation facility. She explained that she did not think the facility was "a place where a child should be." Moreover, she stated that, "[Gavin] did not have a relationship with his father. I think that would be very, very awkward for the child."

Mother stated that Gavin refers to Father as "his other daddy." She felt that the termination of Father's parental rights was in Gavin's best interest because Stepfather was "such a wonderful father to [Gavin] that he deserves it, " and Gavin "deserve[d] the best father that he can have." When asked if she could see "any way possible . . . that Gavin could have you and your husband . . . and have his father in his life?" Mother responded:

We definitely could make it work, but I do think it would be very difficult with no communication. Of course, we are a lot older than we once were, but I just don‟t think with no communication there would ever be a good plan. [Gavin] has a great life the way he is, and I don‟t want him to not have the father he's supposed to have, but I just don‟t see communication ever working out in that aspect.

Stepfather testified that he viewed Gavin "like he's [his] own." He stated that he was "100 percent" prepared to adopt Gavin if Father's parental rights were terminated. Stepfather stated that he was involved in Gavin's day-to-day care and extracurricular sporting activities. When he was asked whether he saw "any way in Gavin's best interest . . . that he could have you and your wife and his father in his life?" he responded, "Sure, " but that "things would have to change." Specifically, Stepfather stated that there would have to be "proof that [Father] wants to be a dad" in order for Father to become involved in Gavin's life.

Father admitted that he was previously addicted to Xanax from summer 2010 to December 2012. Although he had a prescription for Xanax, he admitted he purchased or otherwise obtained additional Xanax pills illegally. He attributed his sporadic visitation with Gavin, in part, to his prior drug addiction. However, Father testified that he has been sober and off drugs since December 6, 2012. Father also tested negative for drug use at the hearing.

Regarding visitation with Gavin while he was residing at the sober living facility, Father testified that his ability to visit was limited. He was not allowed to have outside visitors at the facility until after he had lived there for thirty days. During his first thirty days at the facility, Father could not use the internet or phone, and he could not receive visitors or visit others. After he completed the first thirty days, Father communicated with Grandmother via written letters and "weekly" phone calls. After six months at the facility, Father was allowed to submit requests to visit others. Father requested and received permission to visit Grandmother at least two times while he was living at the facility. Father also requested and received permission to visit the Maury County Courthouse to file a motion to reduce his child support obligation in May 2013.

Father claimed his limited opportunities for visitation with Gavin were impeded because Mother would not allow Gavin to visit Father at the facility or at Grandmother's home. Father also claims he could only request visitation with Gavin through Grandmother because he and Mother were unable to communicate. Yet, he agreed that his attempts to arrange visitation through Grandmother were not all he could have done. Father admitted that he could have called Mother directly to arrange visitation, but he had not done so. Although the facility had telephones and Father had a cell phone, he stated his only attempt to arrange visitation with Gavin was through Grandmother.

Father also never called Gavin or sent him letters or cards while he was living at the facility. Despite their lack of contact, Father said that, when he was visiting with Gavin, their relationship was "great. It was good. We played X-Box all the time." When asked if he saw "any way that it could be in Gavin's best interest to have all three of you in his life, [Mother] and [Stepfather] and you, " he responded "yes." He "absolutely" thought the three of ...


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