Session March 21, 2017
from the Chancery Court for Coffee County No. 2015-CV-175 L.
Craig Johnson, Judge.
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
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.
W. Parham, Manchester, Tennessee, for the appellee, Chance B.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Brandon O. Gibson and Kenny Armstrong, JJ.,
STEVEN STAFFORD, JUDGE.
B. ("the child") 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. 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.
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." 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.
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. It is undisputed that no child support
order was ever entered.
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. Thereafter, Father filed a motion in the
trial court to resume parenting time with the child. Again,
the motion did not mention child support.
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.
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.
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).
to the ...