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In re Karissa V.

Court of Appeals of Tennessee, Knoxville

February 27, 2017

IN RE: KARISSA V., ET AL.

          Session January 26, 2017

         Appeal from the Chancery Court for Roane County No. 2014-AD-457 Frank V. Williams, III, Chancellor

         This appeal concerns the termination of parental rights. Glenn V. ("Grandfather") filed a petition in the Chancery Court for Roane County ("the Trial Court") seeking to terminate the parental rights of his son, Christopher V. ("Father"), and Makara G. ("Mother") to their minor children, Karissa and Makilee ("the Children"). After a trial, the Trial Court terminated Father's and Mother's parental rights on the grounds of abandonment by failure to support and failure to visit. The Trial Court also granted Grandfather's motion for adoption. Father and Mother filed appeals to this Court. We, inter alia, reverse the ground of failure to visit with respect to both parents. We also reverse the ground of failure to support with respect to Mother. However, we affirm the ground of failure to support with respect to Father. We find further that termination of Father's parental rights is in the Children's best interest. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed, in Part, and Reversed, in Part; Case Remanded

          Zachariah Stansell, Knoxville, Tennessee, for the appellant, Christopher V.

          Mark N. Foster, Rockwood, Tennessee, for the appellant, Makara G.

          Martin W. Cash, Jr., Kingston, Tennessee, for the appellee, Glenn V.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         This case concerns the termination of Father's and Mother's parental rights to the Children, Karissa and Makilee, born 2011 and 2013 respectively. Both of the Children were born exposed to drugs. The Children were placed in the temporary custody of Father's father, Grandfather. On December 5, 2014, Grandfather filed a petition seeking to terminate Father's and Mother's parental rights to the Children and for adoption of the Children. In July 2015, Grandfather filed an amended petition to terminate parental rights.

         Mother, upon a finding of indigency, was appointed counsel. In a July 2015 motion, Mother's counsel requested that she be permitted to withdraw from the case citing "irreconcilable differences." Mother's counsel expressed frustration as shown in her billing records at Mother's alleged failure to communicate with her. The Trial Court, however, never entered an order disposing of the motion to withdraw. Mother's counsel texted Mother in the lead-up to trial. A month or so before trial, Mother's counsel attempted to call Mother and left a message. Mother did not appear at the February 2016 trial. Mother's counsel elected to proceed with the case despite Mother's absence.

         Grandfather testified at trial. Grandfather, 45, was a concrete finisher by trade and a small business owner. Grandfather testified that he had taken custody of the Children via court order. Grandfather stated that he kept a detailed visitation log for Mother's visits. Grandfather proceeded to recount the dates Mother missed visitation in the relevant four-month period prior to the filing of the petition, although there was confusion in the testimony as to whether Mother missed 17 visits or visited 17 times. Grandfather testified that Mother had paid him no child support from August 2014 onward. Regarding Father, Grandfather kept no detailed visitation log, but stated that Father visited "[n]ot as much as . . . the Court ordered." Grandfather stated that when Father did visit he mostly texted and paid little attention to the Children. Grandfather stated that Father paid him no child support, and that, in fact, Grandfather had paid certain bills for Father. Grandfather stated that Father now was living in an apartment with a girlfriend. Grandfather also testified to an incident when he found Father sticking a needle in his arm. Grandfather testified that Father worked for him periodically over the years. Grandfather testified:

Q. When did Chris work for you?
A. Well, he just works periodically. I mean, he's -- I mean, I couldn't call him really a steady employee.
Q. Why not?
A. You know, he's -- throughout his whole life, whenever he's turned 18, he's could have had a job, and he's failed to do so.
Q. So when has he worked for you?
A. Well, periodically throughout his -- until he was 17, 18, until he got out of school. I mean, he --
Q. So in 2014, when did he work for you? Rough dates or exact.
A. I think -- 2014, I don't think he worked much with me at all.
Q. What about 2013?
A. Not much. Very, very, very little at all.
Q. 2012?
A. Very little at all.
Q. 2011?
A. Very little at all.
Q. 2015?
A. He's picked up to -- I could say probably three out of -- days a week.
Q. Every week?
A. Well, no. This is '16. I'm sorry, I've got my years mixed up. I'd say probably -- well, I'd really have to look at my records. Probably I think I sent him some tax thing last year, 2015, he might have made $2, 300.00. Let's do it that way. That way I can remember that.
Q. The tax thing you sent him for the year before that, was it more or less?
A. I think it was less.
Q. The reason why I ask is that we had multiple days of hearings in the lower Juvenile Court, do you remember those?
A. Yes.
Q. And every time we had those, you testified that he was working for you at that time, so that's why I'm asking about when was he working, since you said that he would work with you some. But every time we've been in court before, you said he was working with you. Was he only working around the court dates, was he working between the court dates?
A. Well, it seemed like every time we had to go to court, he would work more.
Q. And that's your perception of it?
A. Yeah, that's pretty much.
***
Q. So as we're sitting here today, you can't really say when Chris has worked with you like how many days he's worked with you the past several years?
A. No, not without looking at something. But, no, I mean, I could go back to the records. I know last year, like his tax, because I do them, and I have the tax lady do them, and I mail them out and I look at them, you know. He might have made a couple thousand dollars last year. He gets $10.00 and $12.00 an hour, so, you know, you can figure that out on your finger, I guess, how much money that is, how much he's worked.
Q. Has that been consistent through the past nine years?
A. Yes.
Q. Because you said he's been working since he was 17. You said you believe he's 26?
A. Yes.
Q. That would be nine years?
A. Yeah.
Q. And so you think he's worked enough to make a couple thousand dollars every year since he was 17?
A. Yes, pretty close, yeah.

         Grandfather testified that there was no court order establishing Father's child support. Grandfather stated further that prior to the filing of his petition he never asked Father to pay child support. In response to a question about visitation, Grandfather agreed that Father and Mother visited "substantially" although "not as much as they were allowed." When asked why he filed a petition to terminate parental rights, Grandfather testified:

Because the parents ain't getting no better at all. And I mean, we keep getting, like I say, evidence and everything that looks toward they're not getting well. And again, these kids need love, safe environmental home that they can grow up and be children and have something in life whenever they grow up and get older.
Denee Foisy, a social worker who had worked with Mother, testified as follows:
Q. In terms of parenting skills, do you consider somebody who has been in and out of jail a proper parent?
A. All I could tell you is on what I witnessed, because I can't give professional advice on whether or not I think she should be a parent or not for those children. But all I can tell you is what I observed. And what I observed, she looked really good from what I saw. She didn't need any parenting.

         Robert T., an acquaintance of Mother's, testified. Robert T., wishing to help Mother given her difficult work and family circumstances, had provided Mother with a cell phone to use and planned to hire her as a secretary. Robert T. stated that he told Mother that she was not to engage in any illegal activity on the phone. Robert T. testified that Mother nevertheless stole about $300 from him. Robert T. retrieved the phone from Mother. At some point, the police confiscated the phone. Robert T. testified to text messages he found on the phone that Mother used regarding drugs sales, including "30 is 750. That covers the cost in full. The rest should be split. I'm tired of being given the short end all the time." Another text read: "OK then you owe me two pills from who ever takes you then. You know we sell 40 of them at $20 each to 1 person the second we get them, to get our $ back." Mother's counsel objected strenuously to admitting the text messages. Mother's counsel argued that they were not properly authenticated, and that, for all anyone knew, Robert T. sent them himself. Mother's counsel pointed out that Mother was not present to refute Robert T.'s account, to which the Trial Court stated "it would behoove [Mother] to show up to Court, " Robert T. testified that the messages had originally been deleted, but that "the law" had pulled them back up. Robert T. testified:

Q. Now, when did you -- I think you testified that you retrieved the cell phone. What were the circumstances when you retrieved the cell phone?
A. I told you, the phone alerted me that the data was going over and I confronted her about it and she tried to deny it. And I said, well, you know, part of it was letting me look at the phone. She said, well, come and get it. And then I come up there and got it and she had deleted everything off of it.
Q. She deleted everything?
A. (Witness nods head.)
Q. And when exactly, it's an approximation, you said around August 11th?
A. 12th I think it was.
Q. And so all of her text messages were deleted?
A. Yeah. I got my phone set up to where I can go through my phone and pull records from hers.
Q. And so you were able to pull up this August 10th text message?
A. It actually pulled everything up for ...

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