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In re Sydney B.

Court of Appeals of Tennessee, Nashville

May 12, 2017

IN RE SYDNEY B.

          Session March 21, 2017

         Appeal from the Chancery Court for Coffee County No. 2015-CV-175 L. Craig Johnson, Judge.

         In this termination of parental rights case, prospective adoptive parents appeal the trial court's dismissal of their petition after finding that father did not willfully fail to pay support for the child. We reverse and remand for further proceedings.

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

          Michelle Blaylock-Howser, Murfreesboro, Tennessee, for the appellants, Emery S. and Joseph S.

          Jeremy W. Parham, Manchester, Tennessee, for the appellee, Chance B.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Brandon O. Gibson and Kenny Armstrong, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE.

         Background

         Sydney B. ("the child")[1] was born in October 2009 to Jessica W. ("Mother") and Chance B. ("Father"). Although the child's parents were never married, they lived together for a short period of time following the child's birth. On May 9, 2011, Petitioners/Appellants Joseph S. and Emery S. ("Appellants"), the child's maternal great uncle and great aunt, obtained physical custody of the child. Appellants thereafter filed a petition for legal guardianship of the child. Mother consented to the order of guardianship. Father was incarcerated at the time of the guardianship proceedings.[2] Father did not participate in the guardianship proceeding and a default judgment was entered against him. An order was entered awarding Appellants legal guardianship of the child on August 30, 2012.

         On December 11, 2014, Father filed a parentage petition in the Coffee County Juvenile Court ("juvenile court") asking to be named the child's legal father, to be awarded parenting time with the child, and for "other relief."[3] This petition did not specifically make any mention of child support. On January 7, 2015, the parties entered into an agreed temporary order allowing Father supervised parenting time with the child in December 2014 and January 2015 so long as Father "submitted to and passed a hair follicle drug screening." According to Father, he maintained regular overnight visitation not only in December 2014 and January 2015, but until May 2015 when Appellants terminated Father's visitation.

         The temporary agreed order further provided that the parties would participate in mediation and attend a court-approved parenting class. The parties attended mediation in February 2015, and a hand-written agreement was signed by the parties. The mediated agreement provided for a parenting time schedule and stated that "child support will be established including retroactive support." However, Father refused to sign the formalized agreement, alleging that Appellants attempted to change some of the previously agreed upon terms.[4] It is undisputed that no child support order was ever entered.

         On June 9, 2015, Appellants filed a petition to terminate the parental rights of Father and Mother and for adoption in the Coffee County Chancery Court ("trial court"). The petition alleged the following grounds against Father: (1) willful failure to support; and (2) willful failure to visit.[5] Thereafter, Father filed a motion in the trial court to resume parenting time with the child. Again, the motion did not mention child support.

         A trial occurred on January 8, 2016. At the beginning of trial, Father moved for bifurcation of the proceeding and, with no objection, the trial court heard proof as to grounds for termination only. There was no dispute that Father paid no support for the child in the four months prior to the filing of the termination petition. Father also acknowledged that he had a duty to support the child. Father testified he was working at Quality Coverings during the relevant period and that he could have paid support; however, because Appellants never asked him to pay and he was waiting for a child support order to be entered, he never paid child support prior to the termination petition. Father agreed that one reason he did not pay support was because Appellants "weren't letting [him] see [the child]." When Father attempted to pay child support in October through December of 2015, Appellants refused to accept payment.[6]

         On March 15, 2016, the trial court issued its opinion, and the final order was filed on May 25, 2016. Therein, the trial court found that, because Father was in active litigation to establish a visitation schedule and had filed two separate motions to establish visitation, Father's conduct was not willful with respect to both failure to visit and failure to support. As a result, the trial court concluded that Appellants' petition "fail[ed] in that the Father's conduct was not willful in failing to visit or support due to the impending litigation to establish paternity, visitation[, ] and support." Appellants thereafter appealed to this Court.[7]

         Issue Presented

         Appellants raise one issue in this appeal: Whether the trial court erred in failing to find clear and convincing evidence of abandonment by willful failure to support under Tennessee Code Annotated section 36-1-102(1)(A)(i).[8]

         Analysis

         According to the ...


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