Session February 22, 2017
Appeal from the Circuit Court for Montgomery County No.
MC-CC-CV-SA-14-2261 Ross H. Hicks, Judge
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
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.
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
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.
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
also attended the hearing and agreed with Sophia remaining in
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.
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.
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.
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.
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.
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.
subsequent proceedings on remand were held before Judge Ross
Hicks. On June 8, 2016, Judge Hicks entered an agreed order
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.
6, 2016, Grandparents filed a second notice of appeal, which
stated that they intended to appeal the agreed order entered
on June 8.
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
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 ...