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In re Colton R.

Court of Appeals of Tennessee, Knoxville

February 7, 2017


          Assigned on Briefs January 4, 2017

         Appeal from the Circuit Court for Blount County No. E25607 Tammy M. Harrington, Judge

         This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court's finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; and Affirmed in Part.

          Nicholas Black, Maryville, Tennessee, for the appellant, Mark R.

          David K. Calfee, Cleveland, Tennessee, for the appellees, Cheryl W. and Michael W.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.



         I. Background

         Colton R. ("the child") was born in February 2005, to Petitioner/Appellee Cheryl W. ("Mother") and Respondent/Appellant Mark R. ("Father").[1] Father and Mother were married on February 14, 2002, and divorced by order of the Bradley County Circuit Court ("divorce court") on August 12, 2011. The divorce court adopted and approved the permanent parenting plan previously executed by the parties, which provided for equal co-parenting time with the child and designated mother as the primary residential parent. It is undisputed that no court ever ordered child support to be paid by either parent.

         On April 4, 2012, Father was arrested in Bradley County and charged with two counts of theft over $1, 000.00. Father was released from jail on bond the same day. This incident was only the first in a series of criminal charges against Father, as discussed in detail, infra. On the same day, the divorce court, entered an ex parte order for emergency custody granting Mother exclusive custody of the child. On or about June 1, 2012, the divorce court entered an order allowing Father supervised visitation, with one visit to occur mid-week lasting two hours and a second visit on the weekend lasting four hours. The divorce court further ordered that Father be allowed to call the child every day at 5:30 p.m. for fifteen to thirty minutes depending on the child's desire to talk. At the June 1, 2012 hearing, the divorce court also revealed the contents of its in-chambers interview with the child during the course of the hearing. The child was seven years old at the time.[2] According to the divorce court, the child revealed that Father "stole something" and that Father told the child "Son, you can't tell anybody about this."

         In the span of approximately nine months, Father was charged with eight additional crimes related to theft of property, ranging from misdemeanor theft to charges as serious as theft over $10, 000.00 and burglary. At least two of the charges were dismissed and one was reduced to a lesser offense. However, Father pleaded guilty to eight crimes, including the two initial theft charges in Bradley County, discussed supra, and two charges of theft over $10, 000.00. By our review, Father appears to have been ordered to spend eleven months twenty-nine days in jail but was allowed to serve the remainder of his three-year sentence on community corrections. Father's jail sentence was reduced by pre-trial credits, and he was ultimately released from jail into community corrections on November 22, 2013.[3] Meanwhile, Mother and Petitioner/Appellee Michael W. ("Stepfather, " or, together with Mother, "Appellees") married on August 3, 2012.

         As discussed, infra, Father resumed contact with the child through some telephone calls and two supervised visitations at a supervision center in Madisonville ("supervision center") sometime in January 2014. Father's legal troubles, however, were not over. On February 19, 2014, a warrant was issued for Father's arrest for violation of community corrections based on charges in Polk County of burglary other than a habitation and theft over $1, 000.00. The Polk County criminal charges were eventually dismissed against Father on August 20, 2014, but Father was indicted on the same charges sometime afterward.[4] No visitation occurred while Father evaded arrest. Father remained a fugitive for approximately ninety days until he was apprehended on May 13, 2014. Thereafter, Father admitted that he had violated the terms of his community corrections sentence and, in January 2015, agreed to revocation of his community corrections sentence. Father was therefore ordered to serve the remainder of his prior five-year sentence in jail. There is no dispute that Father has remained continuously incarcerated from May 13, 2014, until the date of the final hearing.

         On May 27, 2014, Mother and Stepfather filed a petition in the Blount County Circuit Court ("trial court") to terminate the parental rights of Father and to permit adoption of the child by Stepfather. An amended petition was filed on December 21, 2015, containing the same grounds for termination as the original petition.[5] Therein, the petition alleged as grounds for termination: (1) abandonment by willfully failing to visit and/or support; (2) abandonment by willfully failing to visit by an incarcerated parent; and (3) abandonment based on conduct that exhibited a wanton disregard for the welfare of the child. By order of July 28, 2014, the trial court found Father to be indigent and appointed counsel for Father and a guardian ad litem for the child. After several continuances and appointment of new counsel for Father, a final hearing was held on February 18, 2016.

         At trial, Mother testified that she agreed to equal parenting time at the time of her divorce from Father because Father and the child had a very good relationship, noting that Father coached the child in sports at the time. However, Mother testified that issues with Father began even before the divorce was final and got worse prior to the finalization of the divorce. According to Mother, Father was very angry, would curse at her in front of the child, and would call her names whenever Mother and Father talked on the phone. On cross-examination, Mother admitted that issues with Father were partially attributable to her infidelity. Mother testified she arranged for the child to be seen by a counselor per the order of the divorce court. According to Mother, the child was discharged by the counselor in May 2012.

         Mother testified that, on April 4, 2012, the date of Father's initial arrest, she was informed that Father had been arrested. As a result, Mother testified that she checked the child out of school early presumably to prevent Father from picking him up. Even though she was aware that Father had been released on bond, Mother testified that she, with the counselor's help, informed the child that Father was in jail. On the same day as Father's initial arrest, Mother testified that she filed a successful petition for an ex parte order of emergency custody. As a result, Mother testified that Father had no contact with the child from the day the ex parte order of custody was issued until the June 1, 2012 hearing. After the June 1, 2012 hearing, Mother testified that the parties agreed Maternal Grandmother would supervise Father's visits with the child. According to Mother, Maternal Grandmother supervised approximately three visits before Father's re-arrest in January 2013. Mother admitted that it was not her main priority to arrange for Father's court-ordered visitation. Mother testified that she preferred for Father to have phone contact with the child rather than in-person visitation because she was concerned for the child's well-being in Father's presence even with supervision. According to Mother, she would allow Father to speak with the child for his court-ordered phone calls only if the child desired to speak to Father.

         From the summer of 2012 to January 2013, Mother claimed that Father saw the child three times-once at a park in Madisonville, once during supervised visitation with Maternal Grandmother around Christmas, and another time at the Zuma Fun Center in Knoxville. When Maternal Grandmother chose to discontinue supervision, Mother testified that the parties never returned to court to find another supervisor. Mother testified that she, herself, was not willing to supervise the visits.

         After Father was released on community corrections in November 2013, Mother recalled that he very soon thereafter made contact with the child because Mother did not take the child to visit Father in the jail. Mother admitted that it took some time for the visits to start and that she had suggested the supervision center as the only avenue that Father could exercise his visitation with the child; Mother stated that she expected him to get that established and paid for before he could see the child. Mother explained that the application fee at her preferred supervision center was not unreasonable because it cost only $5.00 or a donation of two to three canned items. Mother recalled that Father saw the child two times at the supervision center, each for two-and-a-half hours long. Mother testified that the parties arranged for a standing appointment every Wednesday at the supervision center but Father did not participate after the two visits. According to Mother, although additional visits were scheduled at the supervision center, some visits were cancelled because of weather conditions and Father's failure to attend due to a job orientation. Although Mother preferred for the child not to see Father, she claimed that if the child wanted to see Father, she would have made it happen.

         According to Mother, once she was notified that a warrant was issued for Father's arrest, she stopped allowing visitation and phone calls. Mother admitted Father tried to call "once or twice maybe" while he was evading arrest but that she did not allow him to speak with the child. Mother testified that Father's side of the family is welcome to contact the child and can reach her through Facebook; however, they likewise had not made contact with the child in over a year.

         Although Father did not provide any support for the child from the time he was restricted to supervised visitation, Mother recalled that Father did give the child gifts and clothes over the years.

         Mother testified that she had been married to Stepfather for four years, whom she started dating before the divorce was finalized. Mother described their relationship as "fabulous, " and testified that the child is doing "wonderful" in school. According to Mother, the child is a straight-A student, participates in advanced classes, and excels in standardized tests. Mother denied that the child was having any issues, educationally or athletically, during the course of the litigation or as a result of Father's incarceration. Mother testified that the child plays football, baseball, and basketball, and that Stepfather had coached the child's football team since the child was seven years old. According to Mother, Stepfather is very involved with the child, attending all of his baseball and basketball games and volunteering to help when needed. Mother testified that, besides the child, two other children live in the home with her and Stepfather: Stepfather's son from a previous marriage ("Stepbrother") and a female child in their custody ("Sister").[6]Mother testified that no significant issues exist with regard to the children's relationship among themselves. Because Stepfather has no rights to the child, Mother testified that the schools would not communicate with him. Prior to marrying Stepfather, Mother conceded that there was some litigation about Stepfather's overnight visits. Although there was an allegation that the child saw Mother and Stepfather engaged in sexual activity, Mother denied that the child ever witnessed such an activity.

         Mother denied filing the termination petition out of a vindictive motive and testified that she would not have filed the petition had Father not engaged in criminal activity. According to Mother, she discussed Father's situation with the child whenever the child asked questions because the child was aware that Father was in jail. Mother recalled that the child sent Father a few postcards.

         Mother testified that, although the child's last name is legally the same as Father's, the school allowed the child to use the last name of Stepfather informally at school but not on any legal testing that may occur. Mother further testified that she did not discourage child from using Stepfather's last name.

         Stepfather testified about his work schedule and how he met Mother, including the allegations of infidelity in the divorce. According to Stepfather, his relationship with the child is "great." Stepfather testified that he started to actively spend time with the child sometime after the divorce. Stepfather takes the child hunting and fishing. In addition, Stepfather coached the child for four years in football as of the date of trial and helped the coaches with the child's baseball team. When asked about his parenting responsibilities, Stepfather testified that the child spends a lot of time with him during the sports season, with Mother present, and Mother takes the child to school and picks him up.

         Stepfather testified that he has a twenty-four-year-old daughter whom he sees during the holidays, as well as Stepbrother, who resides in Mother's and Stepfather's home every weekend. Stepfather denied allegations of domestic violence against his ex-wife; according to Stepfather, his ex-wife filed an order of protection subsequent to the allegation but that the order was dismissed by agreement.

         Stepfather denied being present when Mother discussed Father's criminal issues with the child. Stepfather testified that the child wanted to use his last name because he "[did not] want to be associated with [Father's] name, a criminal." According to Stepfather, when the child asked for permission to use Stepfather's last name at school, Stepfather gave his permission subject to the school's approval. Stepfather further testified to the child's refusal to visit with Father. Stepfather denied witnessing any inappropriate behavior between Father and the child. Stepfather testified that the child is very resilient and that he is very bright and in control of his emotions for his age. When Stepfather was asked whether he understood the ramifications of the child's adoption, Stepfather testified that he understood and that he was committed one hundred percent.

         Father testified next and stated that, from the moment the child was born, he and the child were "very close." According to Father, Mother returned to work six weeks after the child was born, working nights at a hospital. Father further testified that he worked during the day and took care of the child at night because Mother did not switch to a day shift until the child was about four or five years old.

         Father denied being evicted from his apartment, but a certified copy of a detainer warrant was introduced evidencing the eviction. Father explained that, because he was in custody from June 13, 2012 through July 13, 2012, he was unable to pay rent. Father admitted that he did not have a stable residence after he was released on bond on July 13, 2012. As of the date of the hearing, Father was unsure of when he was going to be released from custody.

         Father testified that on April 4, 2012, the date of his first arrest, he took the child to school. According to Father, it was his day to visit, as well as his day to pick the child up from school. Father testified that he was in custody from approximately 9:00 a.m. to 10:00 a.m. and called Mother immediately when he got out of jail. Father testified, however, that Mother had already checked the child out of school. Father testified that he pleaded with Mother to let him see the child but that she refused. According to Father, he tried to call the child every day, but that if he was one minute off from the 5:30 p.m. time, Mother would not allow the child to talk to him. Father also testified that he tried to send text messages to the child but that return messages told him to stop texting because the child would not receive the messages.

         Father testified that he was able to visit with the child on December 27, 2012, at a bowling alley with Maternal Grandmother supervising. According to Father, he gave the child presents worth a total of $500.00 at this time. After the child went home with Maternal Grandmother, Father testified that he went to Maternal Grandmother's house the next day and spent time with the child before Mother picked him up. The next visit that Father could recall was at the supervision center, sometime after his release on community corrections. Father explained that the supervision center only allowed him to visit on Wednesdays and that Mother refused to make arrangements for Father to be able to visit with the child on the weekends.

         According to Father, after he was released on November 22, 2013, he called the child every day at 5:30 p.m. and had a phone relationship with the child. In the meantime, Father testified that, despite his attempts to set up visits, Mother would not provide a reason why Maternal Grandmother could not continue supervising the visits and rejected every supervisor that he suggested, making him "jump through hoops." Father testified that he called several agencies before he found one that Mother would accept; visitation then resumed in January 2014.

         Father recalled having two visits at the supervision center. According to Father, a few visits were cancelled because of the weather, he cancelled one visit for a job interview, and Mother cancelled another visit with no explanation. The last visit Father could remember occurred on February 6, 2014. Although Father testified that he was not aware if another visit was scheduled after Mother's latest cancellation, Father admitted that he did not request visitation at the supervision center after the last visit. Father also admitted that he was "on the run" for about ninety days after a warrant was issued for his arrest on February 19, 2014. Father testified that he did not wish for the child to witness the police arresting him. Father admitted that all of the criminal behavior that he participated in had been a "personal choice" and that he had "made some bad decisions."

         After his release on community corrections, Father testified that he started looking for work immediately. According to Father, he worked "a little here and there" for his dad, who worked for some brick and block masons. Father testified that it was difficult to find a job due to a disability caused by a prior car accident and his criminal record. According to Father, initially, he was set to be released from custody as a result of his May 13, 2014 arrest because the basis for his community corrections violation, the Polk County charge, had been dismissed. However, Father testified that community corrections filed an addendum to its violation report, alleging that Father failed to report in February 2014 in violation of his community corrections terms. Father explained that he failed to report because he was attempting "to obtain an attorney before [he] returned to jail and turned [him]self in." Nevertheless, Father stipulated that he had materially violated the terms of community corrections by failing to report in February 2014 and began his Tennessee Department of Corrections sentence. Even with the pending warrant, Father testified that he attempted to call the child on "numerous occasions" until his arrest on May 13, 2014.

         According to Father, although the judgments reflect that he pleaded guilty to the McMinn County criminal charge, he contended that he never pleaded guilty and is therefore contesting his guilt. Father testified that one of his felony convictions was actually dismissed during a preliminary hearing; thus, this conviction is the subject of his pending writ of error coram nobis along with his belief that that he had been in jail for ten months too long. As a result, Father sought to be released from his current custody. Father testified that he had not had any disciplinary issues while he was in jail. Father stated his intention to return to work immediately should he be released, stating that he had previously owned his own business making custom kitchen cabinets and fireplace mantles.

         When asked about the allegation that the child accompanied Father on one of his criminal ventures, Father contended that the child's characterization of the event as criminal was incorrect. At the time, the child was six years old. Father explained that he made kitchen cabinets and did "foreclosure work for bank owners and investors." On that particular day, Father asserted that he took the child to a job at a foreclosed home. Although the windows and house were boarded up, Father claimed that he had "sole rights" to anything he wanted in the house. Father claimed he used a crowbar to gain access into the house because it was his only way to get in. Father denied ever introducing the child to any illegal activity. Although Father admitted taking items from the house, Father testified that no criminal charges resulted from this incident.

         The child, ten years old at the date of the final hearing, [7] testified in chambers with counsel for both attorneys and the guardian ad litem present. The child testified that, although that he had not seen Father frequently over the past few years, the visits that did occur were "[g]ood." According to the child, the visits became supervised "because if nobody was there, he might take me and never bring me back." The child explained that his understanding was based on personal experience, stating that Father had done this in the past. When asked about Father's criminal charges, the child recalled being present prior to the initiation of the supervised visitations when Father stole a vacuum cleaner and "something else" that he could not remember from a house. The child recalled that Father used a crowbar and knocked down the door. The child stated that he did not want to see Father again even if Father got out of jail the following week; however, he would not be opposed to speaking with Father on the phone. The child testified that Mother probably would not allow him to visit Father in jail but would ...

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