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In re Sophia P.

Court of Appeals of Tennessee, Nashville

March 30, 2017

IN RE: SOPHIA P.

          Session February 22, 2017

         Direct Appeal from the Circuit Court for Montgomery County No. MC-CC-CV-SA-14-2261 Ross H. Hicks, Judge

         This case involves a petition to terminate parental rights and to adopt filed by the child's grandparents. The trial court found that no ground for termination was proven by clear and convincing evidence and therefore denied the petition. The grandparents appeal. We affirm and remand for further proceedings.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellants, Trina P. and Charles P.

          Christopher J. Pittman and Zachary Louis Talbot, Clarksville, Tennessee, for the appellee, Cody C.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Sophia P. was born in April 2014. Her parents ("Mother" and "Father") were unmarried and in their early 20s. No father was listed on Sophia's birth certificate. Upon their release from the hospital, Mother and Sophia resided with Mother's mother and stepfather ("Grandmother" and "Grandfather, " or collectively, "Grandparents") in Clarksville. Father resided in Nashville. When Sophia was one month old, a dispute arose between Mother and Grandparents when Mother left with Sophia to attend a party and did not return until the following evening. During their verbal altercation, Mother became angry and left Grandparents' home with Sophia to stay in a motel. The Tennessee Department of Children's Services ("DCS") investigated the situation but found no basis for intervention. On May 21, 2014, Mother sent a text message to Grandmother informing her that she could come and get Sophia because Mother had to return to work. Grandparents picked up Sophia at the motel that day, and Sophia remained in their care thereafter.

         In June 2014, Grandparents filed a petition for custody of Sophia in juvenile court. Father was not made a party to the proceeding. On July 2, 2014, the juvenile court entered an "Order for Custody" that stated:

Based upon the Petition for Custody and the testimony presented, the Court finds as follows:
1. [Mother] waives her right to a preliminary hearing and agrees for custody to remain with the Petitioners.
2. It will be up to [Mother] to petition the Court to have custody placed back with her.
3. Petitioners are fit and proper, and it is in the child's best interest that custody remain with the Petitioners.

         Father also attended the hearing and agreed with Sophia remaining in Grandparents' custody.

         In the months that followed the July 2 Order of Custody, Grandparents permitted Mother and Father to visit with Sophia in their home at specified times under their supervision and in accordance with certain conditions. However, Mother and Father were not permitted to be alone with Sophia or leave Grandparents' home with her. Father moved to Colorado in September 2014 to reside with his parents. On November 5, 2014, four months and three days after the Order of Custody was entered, Grandparents filed a petition in circuit court seeking to terminate the parental rights of Mother and Father and to adopt six-month-old Sophia. They alleged that grounds for termination existed pursuant to Tennessee Code Annotated section 36-1-113(g)(1) due to abandonment by willful failure to visit and willful failure to support.

         Days later, Father filed a petition in juvenile court seeking to establish paternity and obtain custody of Sophia. He then filed a motion in the termination proceeding asking the court to establish his paternity and grant him either immediate custody or visitation pending the final hearing. Mother filed an answer and sought visitation as well. Both Mother and Father began having overnight visitation with Sophia while the case was pending.

         Trial was held on July 15, 2015, before Judge John Gasaway. Sophia was fifteen months old by that time. The trial court heard testimony from the DCS investigator, Grandmother, Grandfather, Mother, Father, Father's mother, and Sophia's maternal great-grandmother. At the conclusion of the testimony, the trial judge announced his ruling from the bench. The trial judge found that Grandparents had not proven by clear and convincing evidence that either parent willfully failed to visit or support Sophia during the four-month period prior to the filing of the termination petition. As such, the trial judge announced that the petition to terminate parental rights and to adopt would be denied. The trial judge also announced that he would terminate or dissolve the juvenile court's custody order and award joint custody to Mother and Father. Grandparents were directed to relinquish custody of Sophia the following day so that Father could take Sophia with him on his return flight to Colorado. Mother and Father had assured the trial judge during the termination trial that they could mutually agree on a parenting plan if they were awarded custody, and the trial judge directed them to either agree on a parenting plan or return to court in two months (in September) for the court to fashion a parenting schedule alternating between Colorado and Tennessee. However, Mother's attorney subsequently withdrew from representing her, and no parenting plan was entered as contemplated by the trial judge.

         The trial court entered its written order from the termination trial on September 16, 2015. The trial court declared Father to be Sophia's natural and legal father for all purposes. It denied Grandparents' petition for termination and adoption, dissolved the juvenile court's Order of Custody, and awarded joint custody to Mother and Father. However, the order provided that the hearing on the parenting plan would be reset by agreement of Father and Mother. The trial court entered another order on September 18, 2015, ordering Mother and Father to attend mediation in an attempt to reach an agreement on a parenting plan. On September 22, 2015, Grandparents filed a motion for grandparent visitation.

         Before these matters were resolved, however, Grandparents filed a notice of appeal to this Court on September 30, 2015, attempting to appeal the trial court's September 16 order from the termination trial. The circuit court entered an agreed order on December 14, 2015. According to the order, the parties had attended mediation and resolved issues between them. Specifically, the agreed order stated that Grandparents would have visitation with Sophia on the second full weekend of each month except during the month of June each year due to Father's parenting time. The order provided that Grandparents would continue to have visitation one weekend per month once Sophia reached school age. It also provided that Grandparents would have visitation each year on specified dates around Christmas. Grandparents were required to be responsible for transportation for all of their visitation periods. The agreed order stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that that this Agreed Order resolves the Petitioners' Petition for Grandparent Visitation, however, the appeal of the Order denying Petitioner's adoption Petition in this matter shall remain pending.

         On May 23, 2016, this Court issued an opinion dismissing Grandparents' appeal for lack of subject matter jurisdiction due to the lack of a final judgment. In re Sophia P., No. M2015-01978-COA-R3-PT, 2016 WL 3090788, at *1 (Tenn. Ct. App. May 23, 2016). We recognized that Grandparents were attempting to appeal the trial court's refusal to grant their termination petition. Id. However, we noted that the trial court contemplated either the entry of an agreed parenting plan or an additional hearing for the court to fashion a parenting plan for the parties. Because neither of those had taken place, we explained that a final, appealable judgment did not exist. Id. at *2.

         The subsequent proceedings on remand were held before Judge Ross Hicks. On June 8, 2016, Judge Hicks entered an agreed order that stated:

Based upon the agreement of the parties, IT IS ORDERED that the order previously entered by Judge John Gasaway on September 16, 2015 is a final judgment as to the dismissal of the adoption petition filed by [Grandparents] pursuant to T.R.C.P. Rule 54.02, the Court finding that there is no just reason for delay, and the Court specifically directs the entry of this Final Order on the adoption petition.

         On July 6, 2016, Grandparents filed a second notice of appeal, which stated that they intended to appeal the agreed order entered on June 8.

         On July 14, 2016, the trial court entered a "Final Judgment" and parenting plan setting forth a parenting schedule that allocated time for Sophia with Mother in Tennessee and Father in Colorado. Aside from the style of the case, neither the Final Judgment nor the attached parenting plan mentioned Grandparents or the December 14, 2015 agreed order that resolved Grandparents' petition for grandparent visitation.

         II. Issues Presented

         Grandparents present the following issues, as slightly reworded, for review on appeal:

1. Whether the trial court erred in finding that neither parent abandoned Sophia by willfully failing to visit and/or pay child support during the four months ...

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