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In re Mariah H.

Court of Appeals of Tennessee, Knoxville

June 30, 2017

In RE MARIAH H.

          Session May 22, 2017

         Appeal from the Juvenile Court for Johnson City No. 46, 694 Sharon M. Green, Judge

         This is a termination of parental rights case involving the child, Mariah H. ("the Child"), who was one year of age at the time of trial. On June 26, 2015, the Johnson City Juvenile Court ("trial court") granted temporary legal custody of the Child to the Tennessee Department of Children's Services ("DCS"). The Child was immediately placed in foster care, where she has remained since that date. Following separate hearings, the trial court entered two orders adjudicating the Child dependent and neglected in the care of the parents: one on November 25, 2015, as to the mother, Teresa H. ("Mother"), and the second on January 13, 2016, as to the father, Stafford B. ("Father"). On February 2, 2016, DCS filed a petition to terminate the parental rights of Mother and Father.[1]Following a bench trial, the trial court terminated Father's parental rights to the Child after determining by clear and convincing evidence that Father willfully failed to visit the Child during the four months prior to the filing of the termination petition. Furthermore, the trial court dismissed the grounds alleged against Father of failure to establish paternity and persistence of the conditions leading to removal. Also finding clear and convincing evidence that termination of Father's parental rights was in the best interest of the Child, the trial court terminated Father's parental rights to the Child. Father has appealed. Discerning no error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

         Affirmed; Case Remanded

          Cameron L. Hyder, Elizabethton, Tennessee, for the appellant, Stafford B.

          Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The Child was born in June 2015 in Sullivan County, Tennessee to Mother. The Child's birth certificate was silent as to the identity of her father. Only days after the Child's birth, DCS, responding to a referral involving child abuse, filed a petition for temporary emergency custody of the Child. The trial court subsequently ordered that the Child be placed into DCS custody on June 26, 2015. At the time of removal, Mother stated to DCS that she believed Father to be the Child's biological father but did not know his whereabouts. According to Mother, she had informed Father that he was the biological father of the Child in approximately March or April of 2015. Father claimed that he only learned of the Child's existence in June 2015, a couple of weeks before her birth. According to Father, he moved to Georgia from Tennessee in March or April of 2015.

         Concomitant with the petition for emergency custody, DCS filed a motion requesting relief from the requirement of providing assistance to Father citing a previous involuntary termination of Father's parental rights to a sibling of the Child, J.H. In the previous order terminating Father's parental rights to J.H., the trial court found clear and convincing evidence of three grounds for termination, including a finding that Father had abandoned J.H. by failing to visit him in the four months prior to the termination petition's filing. In part because the trial court determined that J.H. and Father were "complete strangers, " the trial court determined that it was in J.H.'s best interest for Father's parental rights to be terminated.

         Following the Child's placement in DCS custody, the trial court conducted a preliminary hearing on July 9, 2015, during which Mother identified Father to the trial court as the biological father of the Child. In an order entered on December 16, 2015, the court found that the Child was "dependent and neglected as to the mother" and that Mother had "perpetrated 'severe child abuse' upon [the Child]." On January 13, 2016, the court further found the Child to be "dependent and neglected as to [Father]." The court specifically found that "[Father] has not visited with the child at all" and "[Father] has no relationship with the child at this time and is, in effect, a complete stranger to the child." Following that hearing, the court ordered that the Child remain in the custody of DCS. The court further ordered that if Father desired to visit the Child, he should contact DCS to schedule the visit. Additionally, the court granted DCS's motion and relieved DCS of making reasonable efforts to reunify the Child with Father due to the previous involuntary termination of his parental rights to J.H. On February 2, 2016, DCS filed a petition to terminate Father's parental rights. The trial court conducted a bench trial on June 19, 2016.

         The testimony at trial established that Katie Wilhoit was assigned as the DCS case manager. Despite having been relieved of making reasonable efforts to reunify Father with the Child, DCS continued to encourage Father to develop a relationship with the Child following the Child's removal into DCS custody. Ms. Wilhoit testified that she immediately began trying to contact Father and was eventually provided his telephone number by Mother. She was subsequently able to contact Father on July 23, 2015. According to Ms. Wilhoit, she learned during this telephone conversation that Father had relocated from Elizabethton, Tennessee, to Augusta, Georgia, in March or April of 2015. Ms. Wilhoit testified that she informed Father of the importance of visiting the Child and remaining in contact with DCS during that phone conversation. At that time, Ms. Wilhoit obtained Father's mailing address to assist in furthering communication between Father and DCS.

         Ms. Wilhoit reported that she contacted Father via telephone again on July 27, 2015, at which time they discussed a permanency plan, DNA testing, and the importance of Father's visiting the Child. According to Ms. Wilhoit, she subsequently mailed Father several documents, including information regarding a child and family team meeting. Ms. Wilhoit spoke with Father on August 3, 2015, via telephone, when she again stressed the importance of Father's visiting and forming a relationship with the Child. During their telephone conversation, Father informed Ms. Wilhoit that he was having a difficult time visiting the Child because of the distance and his lack of a vehicle and driver's license.[2]

         On August 14, 2015, Ms. Wilhoit mailed to Father documents regarding the criteria and procedures for termination of parental rights, which Father acknowledged having received during a telephone conversation with Ms. Wilhoit on August 24, 2015. Ms. Wilhoit testified that during the August 24, 2015 conversation, she again stressed the importance of Father's visiting the Child. Father did not schedule a visit at that time.

         According to Ms. Wilhoit, she also assisted Father by scheduling an appointment for him to complete DNA testing in Georgia, but Father missed the appointment. In lieu of scheduling another appointment, DCS had a DNA test performed in approximately September 2015, using a DNA sample that Father had previously provided for a DNA test regarding another child. It is undisputed that the DNA test results were conclusive that Father was in fact the biological father of the Child. Ms. Wilhoit testified that she maintained contact with Father and continued to inform him of the significance of visiting the Child and of the consequences of his failure to visit.

         Over the course of the dependency and neglect proceedings, Father informed Ms. Wilhoit and the trial court that factors such as the Child's not being placed with Father's family and Father's inadequate finances were preventing him from seeing the Child. During trial, Father testified that he had maintained employment with FPL Foods since approximately August 2015. The adjudicatory order reflects Father's prior testimony regarding his employment:

[Father] testified that he has not paid any support for the child at all. He testified that he has a good paying job. He testified that he makes approximately ten dollars ($10.00) per hour at this current job, and that he works approximately ten (10) hours a day, six (6) days a week. He has been employed at this job since September 2015. He is paid "time and a half" for all hours over 40 hours each week.

         According to Father's testimony, he would have been more easily able to visit with the Child if the Child had been placed with his family members. Ms. Wilhoit testified that she attempted to arrange visitation for the Child's paternal grandmother after the DNA testing had been conducted. Ms. Wilhoit explained that the paternal grandmother did not appear for the visit and that she never heard from the paternal grandmother again.

         According to Ms. Wilhoit, Father repeatedly expressed to her that his employment with FPL Foods prevented him from visiting with the Child because of the company's strict attendance policy. When asked at trial why he did not travel to Tennessee to visit the Child, Father stated:

At the time, I was getting employed at that position. The rules and regulations stated how long you have to work before you are able to even get a day off. Then it also states that you have to wait a year before you can have vacation leave, vacation pay. The total turnover at my job is just phenomenal. People come and go every day, and they are replaced every day. If it was a situation where I didn't have to have a job because of my responsibilities with my kids, and I could possibly take a day off and get fired like the other people.

         Father provided Ms. Wilhoit with FPL Food's employment policy, which was ultimately entered as an exhibit at trial. The employment policy provided in pertinent part:

The Company understands there may be a need to have time off for urgent personal reasons. In those instances, a RTO-Request may be submitted. The approval of these requests will be up to the Department Manager's discretion. No points will be issue[d] for the scheduled absence. The form must be turned in twenty-four (24) hours before the absence is to occur in order to be considered. A maximum of one (1) request may be approved per rolling 90 day period; no requests may be accrued to give additional time during later months.

         Father testified that he had submitted "three or four" or "four or five" requests for time off to visit the Child. Father claimed, however, that his requests were denied each time due to his lack of seniority. The employment policy also allowed an employee to request time off for court dates. Father testified that he requested time off work for a "few" court dates.

         Ms. Wilhoit testified that following Father's complaints regarding his work schedule, she had informed Father that they could schedule his visits with the Child on weekends or evenings so long as Father provided Ms. Wilhoit with prior notice of two or three days. Father testified, however, that no visitation was offered to him on weekends. After the termination petition was filed, Father attempted to visit with the Child once on the weekend of Memorial Day in 2016. Due to prior travel plans, Ms. Wilhoit was unable to supervise a visit on that weekend. According to Ms. Wilhoit, the foster parents were not willing to supervise that visit because they had never met Father.

         Father visited the Child one time during the pendency of the case on June 20, 2016, for approximately two hours. Ms. Wilhoit supervised the visit between Father and the Child. According to Ms. Wilhoit, the Child was initially upset during the visit because of "the child not knowing who [Father was], " but the Child subsequently calmed down. During the visit, Father played with the Child and talked appropriately to her the entire time. At the conclusion of the visit, Ms. Wilhoit offered to schedule a "follow-up visit" with Father and the Child. However, Father did not schedule a subsequent visit and had not visited the Child since June 2016.

         During trial, Father indicated that he had five children. According to Father, he did not have custody of any of his children. Father's parental rights to one child had been terminated. Father reported that he only paid child support through the court system for two of his other children. Father testified regarding a recent warrant for his arrest in Tennessee for statutory rape involving Mother. According to Father, he "went and took care of the warrant" a couple of weeks prior to trial around the same time he came to visit the Child. Father's court date concerning the related criminal charge was scheduled for July 19, 2016.

         Ms. Wilhoit testified that the Child was doing well in her foster care placement and that she had observed the Child as "part of the family unit" in the foster home. The Child had been placed with two of her biological half-siblings. According to Ms. Wilhoit, the foster family intended to adopt the Child if she were to become available for adoption. Mother testified that if the Child could not be with her, she desired for the Child to remain in foster care with the Child's two half-siblings.

         Following trial, the trial court entered a judgment on September 6, 2016, terminating Father's parental rights to the Child.[3] The court found by clear and convincing evidence that Father had abandoned the Child by willfully failing to visit her. The trial court dismissed the grounds of failure to establish paternity and persistence of the conditions leading to removal. The court further found by clear and convincing evidence that termination of Father's parental rights was in the best interest of the Child. Father timely appealed.

         II. Issues Presented

         Father presents two issues for our review, which we have restated as follows:

1. Whether the trial court erred by finding clear and convincing evidence that Father abandoned the Child by willfully failing to visit her for four months preceding the filing of the termination petition.
2. Whether the trial court erred by finding clear and convincing evidence that it was in the Child's best interest to terminate Father's parental rights.

         III. Standard of Review

         In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         "Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:

The parental rights at stake are "far more precious than any property right." Santosky, 455 U.S. at 758-59. Termination of parental rights has the legal effect of reducing the parent to the role of a complete stranger and of ["]severing forever all legal rights and obligations of the parent or guardian of the child." Tenn. Code Ann. § 36-1-113(1)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental rights is "final and irrevocable"). In light of the interests and consequences at stake, parents are constitutionally entitled to "fundamentally fair procedures" in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair procedures" is a heightened standard of proof-clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and- convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. "[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence, " including statutory grounds and the best interest of the child. See In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).

         IV. Abandonment by Willful Failure to Visit

         Father asserts that the trial court erred by terminating his parental rights based on the ground of abandonment by willful failure to visit. Upon a thorough review of the record, we disagree and conclude that the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence. Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for the termination of parental rights, providing in relevant part:

(a) The chancery and circuit courts shall have concurrent jurisdiction with the juvenile court to terminate parental or guardianship rights to a child in a separate proceeding, or as a part of the adoption proceeding by utilizing any grounds for termination of parental or guardianship rights permitted in this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4. All pleadings and records filed in the chancery and circuit courts pursuant to this section shall be placed under seal and shall not be subject to public disclosure, in the same manner as those filed in juvenile court, unless otherwise provided by court order.
** *
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and
(2) That termination of the parent's or guardian's rights is in the best interests of the child.

         Tennessee Code Annotated § 36-1-113(g)(1) authorizes termination ...


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