Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Jeremiah N.

Court of Appeals of Tennessee, Knoxville

May 2, 2017

IN RE JEREMIAH N., ET AL.[1]

          Session November 21, 2016

         Appeal from the Chancery Court for Hamblen County No. 2015-CV-259 Douglas T. Jenkins, Chancellor

         The maternal grandmother of three children filed a petition to terminate the parental rights of the father of each child on various grounds and to allow the grandmother to adopt the children; the children's mother joined in the petition for the purpose of consenting to the termination of her parental rights and to the adoption. Two of the fathers were incarcerated at the time of the proceeding and the father of the third child was unknown. The trial court terminated the rights of the father of one child on the grounds of abandonment by engaging in conduct prior to his incarceration that exhibited a wanton disregard for the welfare of his child and on the ground that the father had been convicted of an offense and was under a sentence of more than ten years; the court terminated the rights of the father of another child on the grounds of abandonment by failure to support and visit his child within the four months preceding his incarceration and by engaging in conduct prior to his incarceration which exhibited a wanton disregard for the welfare of his child. The fathers of these children appeal. We reverse the judgment terminating the parental rights of one father on the ground of abandonment by failure to support and the judgment terminating the rights of the other father on the ground of abandonment by engaging in conduct evidencing a wanton disregard for his child; in all other respects, the judgments terminating the parental rights of the fathers are affirmed.

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

          Crystal Goan Jessee, Greeneville, Tennessee, for the appellant, Warren A.

          Lauren Armstrong Carroll, Morristown, Tennessee, for the appellant, Michael P.

          Daniel G. Boyd, Rogersville, Tennessee, for the appellee, Pamela N.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural Background

         This is a proceeding to terminate the parental rights of the fathers of three children, Jeremiah N. (born in 1999), Cidney N. (born in 2002), and Robert N. (born in 2006), and to adopt the children. Amanda N. ("Mother") is the children's mother; Warren A. is the father of Cidney, Michael P. is Robert's father, and Jeremiah's father is not known. Pamela N. ("Grandmother") is the children's maternal grandmother; she received custody of Jeremiah on September 29, 1999, and of Cidney and Robert on August 8, 2007, by orders of the Hamblen County Juvenile Court.

         Pamela N. filed the petition on May 21, 2015. Pursuant to Tennessee Code Annotated section 36-1-117, Amanda N. joined in the petition "for the purpose of providing her consent to the adoption to the minor children." The petition alleged that each father abandoned or otherwise willfully failed to maintain contact with his child, willfully failed to make reasonable payments towards the child's support, and engaged in conduct which showed a wanton disregard for the welfare of his child. Warren A. and Michael P. initially filed pro se responses to the petition; following the appointment of counsel, answers were filed on their behalf, both denying that grounds existed to terminate their rights. Trial on the petition was held on January 25, 2016.

         In an order entered February 18, 2016, the court terminated Michael P.'s rights on the ground of abandonment by failure to support, failure to visit, and by engaging in conduct exhibiting a wanton disregard for the welfare of Robert; terminated Warren A.'s rights only on the ground of abandonment by engaging in conduct exhibiting a wanton disregard for the welfare of Cidney; and terminated the rights of the unknown Father to Jeremiah upon a finding of "sufficient statutory grounds." The court also confirmed Mother's consent to the adoption.

         Michael P. and Warren A. appeal.

         II. STANDARD OF REVIEW

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

         Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id.

         III. DISCUSSION

         Michael P. and Warren A. both assert, inter alia, that the trial court erred in holding that they abandoned their respective child. Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment, as defined at section 36-1-102(1)(A), constitutes a ground for termination; subsection (iv) of the latter statute sets out definitions of abandonment that apply when the parent whose rights are sought to be terminated is incarcerated when the proceeding is instituted. Pertinent to this case, the ground applies where the parent is alleged to have failed to visit or support the child in the four months immediately prior to incarceration or to have "engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child." Tenn. Code Ann. § 36-1-102(1)(A)(iv). As both fathers were incarcerated at the time the petition was filed, we apply the definition at section 36-1-102(1)(A)(iv) in our resolution of the issue of abandonment.[2]

         A. Michael P.

         Michael P.'s rights were terminated on the grounds of abandonment by failure to support, failure to visit, and by engaging in conduct exhibiting a wanton disregard for the welfare of Robert. He raises the following issues:

1. Whether the Court erred in finding by clear and convincing evidence that [Michael P.] abandoned Robert N. by willfully failing to support or make reasonable payments toward the support of Robert N. for four (4) consecutive months preceding his incarceration, from August 2007 to December 2007.
2. Whether the Court erred in finding by clear and convincing evidence that [Michael P.] abandoned Robert N. by willfully failing to visit or engage in more than token visitation with Robert N. for four (4) consecutive months preceding his incarceration, from August 2007 to December 2007.
3. Whether the Court erred in finding by clear and convincing evidence that Father P. has engaged in a course of conduct which shows a wanton disregard for the welfare of Robert N.
4. Whether the Court erred in finding by clear and convincing evidence that Father P. did not make an adjustment of circumstances or conditions to have a present, meaningful relationship with Robert N., did not maintain regular visitation or contact with Robert N., did not provide support for the benefit of Robert N., and has not maintained a meaningful relationship with Robert N. since his birth, thus concluding that termination of [Michael P.'s] parental rights is in the best interest of Robert N.

         1. Willful Failure to Support and Failure to Visit

         Michael P. does not contend that he paid support. Rather, he argues that the record does not show that he knew he had a duty to support Robert, that he had the ability to provide support, that he made no attempts to provide support, and that he had no justifiable reason for not providing support. With respect to failure to visit, he contends that an order of protection prohibiting him from being around Mother restricted his ability to visit; that, despite the order of protection, he did visit; and that the visitation he engaged in was not token. We construe Michael P.'s contentions as to both grounds as addressing the element of willfulness in his failure to pay support and in the manner in which he exercised visitation.

         In In re Audrey S., the court discussed willfulness in the context of termination cases:

The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months. . . .
In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.

182 S.W.3d at 864-65 (citations omitted). With this definition in mind, we proceed to examine the evidence.

         a. Failure to Support

         In addition to the holding in the final order that Michael P. willfully failed to support Robert, the court made the following statement at the hearing:

With respect to support of the minor child, he had an opportunity August 2007 to December 2007 to support the child, and I do realize that he was living with the child's mother at least on and off part of that time, and maybe even living with the grandmother, who's the custodian of the child, a small portion of that time. But the testimony that I heard from Pamela N[.], which I credit, is that he did not support the child. That she was and has been responsible for that since she received the child into her household, which was very shortly after the child's birth.
This court has held that a parent's failure to support is "willful" when the parent (1) knows of his or her duty to support, (2) has the ability to provide support, (3) makes no effort to provide support, and (4) has no justifiable reason for not providing support. In re Audrey S., 182 S.W.3d at 864. A failure to support is not excused by the conduct of another person unless the person's conduct prevents the parent with the obligation to support from fulfilling that duty. Id.

         As respects the first, third and fourth elements of willfulness, Michael P. argues in his brief on appeal that, during the pertinent four month period, "Father P. and mother were married, he was not aware that he did not have legal custody of Robert N., and there were no court orders concerning an actual child support payment." Michael P.'s argument in this regard is without merit. It is well settled that the obligation to pay support is not dependent on an order to pay support. See Tenn. Code Ann. § 36-1-102(1)(H) ("Every parent who is eighteen (18) years of age or older is presumed to have knowledge a parent's legal obligation to support such parent's child…".); In re Jacobe M.J., 434 S.W.3d 565, 572 (Tenn. Ct. App. 2013) ("A parent's obligation to support his or her child exists regardless of a court order requiring the parent to pay support.") (citing In re Shandajha A. G., No. E2012-02579-COA-R3-PT, 2013 WL 3787594 (Tenn. Ct. App. July 17, 2013). When asked if he provided support, Michael P. responded, "No, sir, but I wasn't asked to." A parent's obligation to support his or her child is likewise not dependent on a request from the other parent.

         As respects the second element, there is no evidence in the record that Michael P. had the ability to pay support during the four month period. In light of the absence of such proof, we cannot conclude, as a matter of law, that his failure to pay was willful. Accordingly, we reverse the holding that the evidence established that Michael P. willfully abandoned his child by failing to support Robert.

         b. Failure to Visit

         The court also determined that Michael P. abandoned Robert by willfully failing to visit him; the court stated the following at the hearing:

[W]ith respect to his visitation, it does sound like he saw the child a few times during the period August 2007 to December 2007. I believe that's a four month period when he was not incarcerated. But the Court finds that that was merely token visitation, and at the time it sounded like he was more interested in continuing his relationship with the mother of the child more than with the child itself, and that subsequently he was sentenced to a long period of time in prison and has had no meaningful contact with the child. So the Court believes that that ground is sustained.

         Willfully failing to visit is defined as "the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Tenn. Code Ann. § 36-1-102(1)(E). Token visitation "means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child." Tenn. Code Ann. § 36-1-102(1)(C).

         Michael P. testified that he was served with an order of protection[3] in July 2007 and that the order prohibited him from being near Mother and Robert. He also testified, however, that Mother occasionally brought Robert to visit him, and that the three of them would go out to eat despite the order. This testimony is evidence contrary to Michael P.'s contention that the order of protection deterred him from visiting Robert. Moreover, there is no testimony or other evidence that Michael P. sought visitation or relief from the order of protection.

         As to Michael P.'s contention that his visitation with Robert was more than "token visitation, " Michael P. testified that, during the four month period, he was separated from Mother and did not see Robert very often, [4] and that after the order of protection was dismissed, [5] he would accompany Mother to visit Robert at Grandmother's house. Grandmother testified that she recalled Michael P. visiting Robert on his first Christmas in 2006; that during the period from August to December 2007, Michael P. came by her house with Mother on one occasion and remained in the driveway; and that she had no knowledge regarding whether Mother ever took Robert to visit Michael P.

         The testimony shows that Michael P. occasionally saw Robert; that he was not prevented by the order of protection from visiting Robert; that he did not make an effort to secure or enforce visitation; and that his visitation with Robert occurred when Michael P. was visiting with Mother. This testimony supports the trial court's finding that Michael P. visited Robert only when visiting Mother and that the visitation was "token visitation" within the meaning of Tennessee Code Annotated section 36-1-102(1)(c).

         Accordingly, the court's determination that Michael P. willfully failed to visit Robert is supported by clear and convincing evidence.

         2. Wanton Disregard

         In the final order, the court held that Michael P. "engaged in a course of conduct which shows a wanton disregard for the welfare of the minor child, Robert…. [Michael P.], has a history of felony criminal charges in the State of Tennessee and has been incarcerated for a period exceeding ten (10) years." Pertinent to that determination, the court made the following statement at the hearing:

[T]he ground for his termination that he's been incarcerated, or he's been sentenced to serve a term of incarceration that is ten years or more is well supported by the Exhibits and also the testimony of [Michael P.] himself….[W]ith respect to wanton disregard for the welfare of the child exhibited by [Michael P.], it is true I think from the proof I've heard, that [Michael P.]'s criminal activity occurred prior to the child's birth. But then there was the incident with the slamming of the cars, the incident that led to the Order of Protection, and then the incident that led him to be charged with aggravated assault. That at least occurred, I think, after the birth of the child. And, in fact, the child may very well have been in the car when he rammed it. That alone, I think, is sufficient to find by clear and convincing evidence that [Michael P.] has a wanton disregard for the welfare of the child.

         Michael P. argues that the court erred in holding that there is clear and convincing evidence that he engaged in a course of conduct exhibiting a wanton disregard for Robert. Specifically, he contends that since Robert's birth, he has not engaged in any criminal conduct. For the reasons stated below, this contention, even if true, is not dispositive of the issue.

         This court has held that repeated incarceration, criminal behavior, probation violations, substance abuse, and the failure to provide adequate supervision or support for the child "can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of the child." In re Audrey S., 182 S.W.3d at 868. The actions taken by the parent during the period of pregnancy may be considered in considering this ground of abandonment. See In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App. Apr. 11, 2016) ("[I]n the context of this ground for termination, 'our courts have extended the definition of 'child' to include the period of pregnancy.") (quoting In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015)). We have held that the conduct constituting a wanton disregard must have occurred when the parent had knowledge of the child. In re F.N.M., 2016 WL 3126077, at *4 ("[T]he wanton disregard language of Tenn. Code Ann. § 36-1-102(1)(A)(iv) must be construed to require that the father has knowledge of the child at the time his actions constituting wanton disregard are taken.") (quoting In re Anthony R., 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015) (emphasis in original)).).

         The evidence of wanton conduct consisted of Michael P.'s testimony[6] as well as certified copies of his criminal record.[7] The portion of the record pertinent to this issue shows that Michael P. learned of Mother's pregnancy in April 2006; that he was thereafter charged with a probation violation and otherwise engaged in criminal behavior, including aggravated domestic assault and resisting arrest; and that he was convicted of the offense for which he is currently incarcerated prior Robert's birth in December. This is clear and convincing evidence that Michael P. engaged in conduct that constituted wanton disregard for Robert's welfare within the meaning of Tennessee Code Annotated section 36-1-102(1)(A)(iv).

         B. Warren A.

         Warren A.'s rights were terminated on the ground of abandonment by engaging in conduct prior to his incarceration indicating a wanton disregard for Cidney's welfare; in making the determination, the court stated:

Respondent/Father, Warren A[ ], pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv) has engaged in a course of conduct which shows a wanton disregard for the welfare of the minor child, [Cidney]. Respondent/Father, [Warren A.], has a history of felony criminal charges in the State of South Carolina and is currently serving a twenty-five (25) year sentence in South Carolina. Further, Father has had a vast series of discipline write-ups and discipline infractions during his incarceration.

         Warren A. argues that he has not engaged in any criminal conduct since before Cidney's birth and that his incarceration alone cannot constitute wanton disregard within the meaning of the statute. In addition, he contends that the court incorrectly considered Tennessee Code Annotated section 36-1-113(g)(6) in terminating his rights because it was not specifically pled in the Petition for Adoption. We address these contentions in order.

         Warren A. testified that the criminal charges that resulted in his current incarceration occurred in 1997 and 1998-prior to meeting Cidney's mother; that he went to jail in 2002, which was two months after Cidney was born; and that he was not aware of Cidney's existence until she was five or six years old. As noted supra, in Section III. A.2, in order to sustain termination of parental rights on this ground, the parent alleged to have engaged in conduct evidencing wanton disregard for the welfare of the child must have had knowledge of the child at the time the conduct occurred. While Warren A.'s testimony at trial as well as the copies of his criminal convictions fully support a finding that he engaged in serious criminal behavior for many years prior to his incarceration, this conduct occurred prior to Cidney's birth. His uncontradicted testimony is that he did not learn of her existence until she was she was five or six years old.

         In addition, the trial court relied on Warren A.'s disciplinary record in prison in sustaining this ground. Warren A. testified that, while incarcerated, he was charged with assault with intent to kill and possession of marijuana; that he took a rehab class stemming from his marijuana charge; and that he received several disciplinary actions for exhibitionism and lewd conduct. While the record shows that Warren A. has engaged in a series of acts that have resulted in disciplinary measures being taken against him while incarcerated, these acts do not come within the purview of Tennessee Code Annotated section 36-1-102(1)(A)(iv), which requires the conduct to have occurred prior to the parent's incarceration.

         For these reasons, the evidence does not sustain the termination of Warren A.'s rights on the ground of abandonment by engaging in conduct evidencing wanton disregard for the welfare of Cidney. We reverse the termination of his rights on that ground.

         With respect to Warren A.'s argument that Tennessee Code Annotated section 36-1-113(g)(6) was not specifically pled in the Petition for Adoption, [8] the allegations that are specific to him are in paragraphs 12, 13, and 14; the paragraph pertinent to this issue is paragraph 14:

14. Petitioner avers that Respondent/Father, [Warren A.], has engaged in a course of conduct which shows a wanton disregard for the welfare of the minor child, [Cidney], pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv). In support of this petition, Petitioner would show the Court that the Respondent/Father, [Warren A.], has a history of felony criminal charges in the State of South Carolina and is currently incarcerated in South Carolina on felony charges with a sentence end date of 2025.

         At the conclusion of the hearing, the court stated the following:

[A]lthough it's inartfully worded, I do think that [Grandmother's counsel] pled ten years incarceration in a manner that fairly gave [Warren A.] notice of what was being claimed as a ground for the petition. And, of course, he does have a sentence that is more than ten years, and so that ground is sustained by clear and convincing evidence.

         The importance of adequately pleading the grounds upon which termination of parental rights is sought has been addressed in several cases. The touchstone of the requirement is that the parent be placed on notice of the ground in order to prepare a defense. See In re Landon, No. M2011-00737-COA-R3-PT, 2012 WL 113659, at *4 (Tenn. Ct. App. Jan. 11, 2012) (reversing an order terminating parental rights because the petition did not allege the ground upon which the rights were terminated); In re Anthony, No. M2012-01412-COA-R3-PT, 2013 WL 500829 at *4, *7 (Tenn. Ct. App. Feb. 8, 2013) (holding that a court cannot terminate parental rights on a ground not alleged in the petition). Upon our review of the record, we agree with the trial court that Warren A. was given adequate notice that his ten years of incarceration was being asserted as a ground for termination of his parental rights in accordance with section 36-1-113(g)(6). The record shows that he was provided with an adequate opportunity to present a defense to that ground if desired.

         Prior to the introduction of proof, counsel for each party was given the opportunity to make an opening statement. Counsel for Grandmother made the following comments regarding Michael P., which put counsel's subsequent comments regarding Warren A. into context:

Michael P. is the biological and legal father of [Robert], . . . [Michael P. has been incarcerated due to Federal charges of possession with intent to distribute a cocaine base. He's been incarcerated since sometime in December of 2007. His sentence that he received was 120 months, or a ten year sentence. * * *
Most importantly, Judge, we have alleged that he has shown a wanton disregard for the welfare of the child with regards to his criminal conduct. Further, that part of that is that he has been ordered to serve a sentence of ten years or more pursuant to ยง 36-1-113(g)(6). A parent who is ordered to serve a sentence of ten years or more as a result of criminal activity, it's a ground for the termination to occur. So we have ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.