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In re Braxton M.

Court of Appeals of Tennessee, Knoxville

July 5, 2017

In re BRAXTON M. et al.

          Session March 23, 2017

         Appeal from the Circuit Court for Greene County No. 15A004 Beth Boniface, Judge

         This is a termination of parental rights case, focusing on Braxton M. and Briley N., the minor children ("the Children") of Kevin M. ("Father") and Heather N. ("Mother"). On March 21, 2011, the Washington County Juvenile Court ("juvenile court") entered an order removing the Children from the parents' custody and placing them in the physical custody of Mother's father and stepmother, William N. and Donna N. ("Maternal Grandparents") in response to a dependency and neglect action initiated by the Tennessee Department of Children's Services ("DCS") due to Briley's drug-exposed condition at birth.[1] In September 2011, the juvenile court entered an order maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the option of petitioning for return of custody at a later date. On April 15, 2015, Maternal Grandparents filed a petition in the Greene County Circuit Court ("trial court") to terminate the parental rights of the parents and adopt the Children. Mother subsequently surrendered her parental rights to the Children and is not a party to this appeal. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Father upon its finding by clear and convincing evidence that Father had abandoned the Children by willfully failing to financially support and visit them. See Tenn. Code Ann. § 36-1-113(g)(1). Finding Father to be a putative father, the trial court also applied the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v) to find clear and convincing evidence that Father had failed to manifest an ability and willingness to assume legal and physical custody of the Children and that placing the Children in Father's legal and physical custody would pose a risk of substantial harm to their physical or psychological welfare. The court further found by clear and convincing evidence that termination of Father's parental rights was in the Children's best interest. Father has appealed. Having determined that the trial court erred in applying an amended version of Tennessee Code Annotated § 36-1-113(g)(9)(A) not controlling in this action, we further determine the statutory grounds provided in subsection -113(g)(9)(A)(iv)-(v) to be inapplicable to Father under the controlling version of the statute. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights to the Children.

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

          Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Kevin M.

          Brent Hensley, Greeneville, Tennessee, for the appellees, Donna N. and William N.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         When Braxton was born in September 2007, Father was seventeen years old and Mother was sixteen years of age. At the time of the July and August 2016 trial in this action, Father was in the custody of the Greene County Jail but was transported to appear before the trial court. Father testified that although Mother and he were never married, they lived together with Braxton for several years, at first residing with Mother's biological mother, then with Maternal Grandparents, and ultimately on their own. Father explained that he graduated from high school when he was eighteen and that he and Mother found "a place" at that time, keeping Braxton with them.

         According to Father, when Braxton was two years old, Father and Mother developed addictions to pain medication. At the age of nineteen, Father pled guilty to criminal charges of aggravated burglary and theft over $1, 000, resulting in a sentence of three years' probation. Father subsequently was arrested again and entered a guilty plea to eight counts of theft over $1, 000 and violation of probation, resulting in a sentence of five years' and two days' incarceration. When Father entered custody in the fall of 2010, Mother was expecting Briley, who was born in early March 2011. Mother also testified at trial, essentially corroborating Father's testimony concerning the years preceding Briley's birth.

         Upon a referral at the time of Briley's birth, the family became the subject of a DCS investigation because Briley was born exposed to drugs. DCS initiated a dependency and neglect action in the juvenile court, requesting emergency removal of the Children from the parents' custody and placement with Maternal Grandparents. In an order entered March 21, 2011, the juvenile court granted physical custody of the Children to Maternal Grandparents. Father testified that although he was incarcerated at the time of the Children's removal, he was transported to appear in the juvenile court for a March 2011 hearing during which he, while represented by court-appointed counsel, agreed that temporary placement of the Children with Maternal Grandparents would be in the Children's best interest.

         The juvenile court subsequently entered an order on September 6, 2011, maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the ability to petition for custody at a later date. We note that no juvenile court orders are in the record before us. However, the effects of the juvenile court's actions were described by the trial court in its final decree and are not in dispute on appeal. The record contains no indication of whether the Children were adjudicated dependent and neglected by the juvenile court.

         According to Father, he served twenty-seven months and seventeen days of his approximately five-year sentence before being released on November 20, 2012. Although Father returned to custody in 2013 to serve thirty days for a trespassing conviction, Maternal Grandparents do not dispute that Father visited the Children fairly regularly from November 20, 2012, through the end of 2013. Father visited the Children primarily at Maternal Grandparents' home but also sometimes at the home of the Children's paternal grandparents ("Paternal Grandparents"). Father testified that he would often bring his then-paramour, L.H., and her daughter, S.R., who was approximately the same age as Briley, to visit with Briley and allow the girls to play together. Undisputed testimony demonstrated that Father, the Children, L.H., and S.R. accompanied Paternal Grandparents and other family members during a five-day vacation to an out-of-state amusement park in 2013. Father, L.H., and S.R. also visited with the Children over the course of approximately one and one-half days during the 2013 Christmas holiday.

         Father testified that he was not incarcerated from January to June 2014. A 2014 calendar maintained and presented by Donna N. ("Maternal Grandmother") reflected that in 2014, Father visited the Children once in March for Briley's birthday, twice in April, and once in May. A note written on the calendar for the month of April stated that Maternal Grandparents had "set up visitation for [Father] to visit every other Sun. for 2 hrs. from 2-4." Father's next three visits took place on alternate Sundays in 2014: April 13, April 27, and May 11. Father acknowledged that near the end of the May 11, 2014 visit, he promised Braxton that he would purchase juice boxes and bring them back later in the day so that Braxton could take the juice boxes to school. Father admitted forgetting about the juice boxes until the next day. He stated that the days slipped away thereafter until he felt he had missed the opportunity to bring the juice to Braxton. L.H., who had been present during the May 11, 2014 visit, testified that Father and she did not return with juice boxes for the Children that day because Father and she "were on drugs."

         In late June 2014, Father was arrested and served twenty days in jail for conviction of what he described as evading arrest or filing a false report. He was subsequently involved in an altercation in August or September 2014, which gave rise to his entering a guilty plea to a charge of simple assault on December 8, 2014. As a result, Father was incarcerated from December 31, 2014, through February 2015, and was then sent to court-ordered rehabilitation in Kingsport, Tennessee.[2] Father testified that he completed rehabilitation in March 2015. However, Father was again incarcerated in October 2015 for violation of probation and was subsequently charged with introduction of contraband, specifically Suboxone strips, into a penal facility. Father testified that he had been indicted on the charge of introduction of contraband and had a trial date set for September 2016. We note that because no documentation of Father's criminal history was presented during trial in this action, the trial court relied on Father's description of his criminal history, which Maternal Grandparents have not disputed.

         Father acknowledged that he had not visited the Children since May 11, 2014. He presented print-out copies of several messages he had sent to Maternal Grandmother via Facebook. Although all of the messages included the month and day they were posted, several were missing the year. Of those messages that did include the year, some were posted in 2013 and reflect communication regarding Father's visits with the Children during that time, as well as Father's promise in July 2013 to deliver a money order to Maternal Grandparents. An exchange of messages in March 2014 reflects arrangements for Father to deliver an item for Briley near her birthday.

         On November 23 and 24, 2014, and on December 14, 2014, Father sent Facebook messages to Maternal Grandmother in which he sought to visit the Children, although he also expressed frustration in the November 23, 2014 message, stating: "Every time I turned around its there [sic] not mine or u will never get them and I let it get to me and gave up." In the December 14, 2014 message, Father requested that he be allowed to "please talk to the kids or see them, " continuing by stating that he "just want[ed] a start with the kids somewhere please."[3] Maternal Grandmother testified that "some time" elapsed between Father's last visit with the Children and when he began to send her messages via Facebook near the end of 2014. She acknowledged that she had not responded to Father's more recent Facebook messages, stating that she "thought it was time to quit having him coming in and out of [the Children's] lives." Father acknowledged that after May 2014, the Facebook messages he posted were his only attempts to contact Maternal Grandparents regarding visitation with the Children.

         Father testified that when not incarcerated, he had been employed in several capacities. He maintained that he was in good health and suffered no physical limitations. Father stated that upon his release from custody in November 2012, he obtained employment with Krystal Restaurant ("Krystal") and worked there through the early summer of 2013. However, the exact dates of Father's employment with Krystal were not clear from his testimony. Krystal payroll records presented by Father reflect paychecks dated May 27, 2013, through August 5, 2013. According to Father, he obtained a part-time job at Quik Stop, a convenience store, in June 2013 while he was still working at Krystal and then stopped working at Quik Stop in April or May of 2014.

         During the summer of 2014, Father performed some temporary work through LQM, a staffing company. Father acknowledged that he did not maintain regular employment again until November 2014 when he obtained a position with Affordable Tree Service, earning ten dollars per hour. He stated, however, that prior to working for Affordable Tree Service, he did "a lot of odd stuff, " including roofing for various people. Father opined that once released from his current incarceration, he would probably be able to return to employment with Affordable Tree Service.

         Father does not dispute that his sole monetary payment to Maternal Grandparents in support of the Children consisted of a money order in the amount of $100.00, which he mailed to Maternal Grandparents at some point in 2012 or 2013. He acknowledged that he sent the money order partially for "legal purposes" because he hoped to eventually petition to regain custody of the Children. He also had a total of $398.15 taken out of his Krystal paychecks to cover health insurance for the Children. Father acknowledged that he did not voluntarily request that the Children be covered by his health insurance, stating that their coverage was required due to a pending child support enforcement action. Father also acknowledged that although he was covered by health insurance through his employment with Quik Stop, the Children were not. It is undisputed that Father had not been under any court order to pay child support. Maternal Grandmother testified that although she had been to child support court several times, a hearing had been set as to Father only once and was then continued due to Father's incarceration.[4]

         It is also undisputed that in 2013 and 2014, Father provided some birthday and holiday gifts for the Children and purchased some items of clothing for the Children. Paternal Grandmother corroborated Father's testimony that she dropped off the items of clothing, which also included donated items from another family member, on Maternal Grandparents' front porch. Paternal Grandmother identified a photograph taken of a bag of clothing items on Maternal Grandparents' front porch, stating that the date was in 2013 or 2014. Father described presents he provided for the Children in 2013 and 2014. He also testified that he attempted to provide bags of disposable diapers for Briley but that Maternal Grandparents directed him to take back the diapers, once because he had bought a brand that purportedly gave Briley a rash and once because Maternal Grandparents said they had enough diapers. Maternal Grandmother's 2014 calendar reflected that Paternal Grandmother dropped off Christmas presents for the Children on December 23 of that year. Father testified that he had provided Christmas presents in 2014 for Paternal Grandmother to take to the Children.

         On April 15, 2015, Maternal Grandparents filed a petition to terminate the parental rights of the parents. As to Father, they alleged statutory grounds of (1) abandonment through willful failure to financially support the Children, (2) abandonment through willful failure to visit the Children, (3) Father's failure to manifest an ability and willingness to assume legal and physical custody of the Children, and (4) a significant risk of substantial harm to the physical or psychological welfare of the Children if they were placed in Father's legal and physical custody. Maternal Grandparents concomitantly filed a petition for adoption of the Children, requesting, inter alia, that Braxton's surname be changed from Father's surname to their own, which had been Briley's surname since birth. Father was not served with the termination petition until October 2, 2015, during the approximate period of time when he was arrested on outstanding warrants for violation of probation. On January 8, 2016, the trial court entered an order finding Father to be indigent and appointing counsel to represent him during the termination proceedings. The transcript and final judgment demonstrate that at some point prior to trial, the court appointed attorney Alex A. Chesnut as a guardian ad litem to represent the Children.[5] Father filed an answer to the termination petition on February 11, 2016, denying all substantive allegations and requesting dismissal of the petition.

         Following two days of trial conducted on July 22, 2016, and August 24, 2016, the trial court took the matter under advisement. On September 2, 2016, the court entered a memorandum opinion granting the termination petition as to Father upon finding by clear and convincing evidence that Father had abandoned the Children through willfully failing to financially support and visit them. See Tenn. Code Ann. § 36-1-113(g)(1). The court also found that because Father had not executed an unrevoked and sworn acknowledgment of paternity as to either child, he was a putative father to the Children, rather than a legal father. Applying the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v), the court found clear and convincing evidence that Father had failed to manifest an ability and willingness to assume legal and physical custody of the Children and that placement of the Children in Father's legal and physical custody would pose a significant risk of substantial harm to the physical or psychological welfare of the Children. The court further found by clear and convincing evidence that termination of Father's parental rights was in the Children's best interest.

         Father filed a premature notice of appeal on September 19, 2016. On October 21, 2016, the trial court entered a final order with incorporated memorandum opinion, terminating Father's parental rights to the Children and granting Maternal Grandparents' petition to adopt the Children, including the request to change Braxton's surname. Father subsequently filed an amended notice of appeal, which this Court treated as timely pursuant to Tennessee Rule of Appellate Procedure 4(d).

         II. Issues Presented

         On appeal, Father presents four issues, which we have restated as follows:

1. Whether the trial court erred by finding clear and convincing evidence of the statutory ground of abandonment by willful failure to financially support the Children.
2. Whether the trial court erred by finding clear and convincing evidence of the statutory ground of abandonment by willful failure to visit the Children.
3. Whether the trial court erred by finding that Father was a putative father to the Children, rather than a legal father, and terminating Father's parental rights based on the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v).
4. Whether the trial court erred by finding clear and convincing evidence that termination of Father's parental rights was in the Children's best interest.

         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, 523-24 (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 (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. Statutory Abandonment

         Tennessee Code Annotated § 36-1-113 (2014 & Supp. 2016) lists the statutory grounds for termination of parental rights, providing in pertinent 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.
** *
(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.

         The trial court determined, inter alia, that Father had abandoned the Children by willfully failing to financially support and visit them in the four months immediately preceding Father's incarceration prior to the filing of the termination petition. Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2016) provides, as relevant to this action:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred; . . .

         Tennessee Code Annotated § 36-1-102(1)(A) (Supp. 2016) defines abandonment, in relevant part, as:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child; . . .
* * *
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration . . . .

         The parties stipulated during trial that because Father was incarcerated during the four consecutive months immediately preceding the filing of the petition on April 15, 2015, the statutory determinative period for abandonment through failure to visit and support was four months immediately preceding Father's incarceration on December 31, 2014. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). The trial court therefore accepted the parties' stipulated determinative period as spanning August 31, 2014, through December 31, 2014. This Court previously has determined that, pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv), the four-month period "immediately preceding" the parent's incarceration ends on the day before the actual date of incarceration. See, e.g., In Re Jayden B.T., No. E2014-00715-COA-R3-PT, 2015 WL 3876573, at *4 (Tenn. Ct. App. June 23, 2015), perm. app. denied (Tenn. Sept. 25, 2015); In re D.H.B., No. E2014-00063-COA-R3-PT, 2015 WL 1870303, at *8 (Tenn. Ct. App. Apr. 23, 2015). We therefore conclude that the statutory determinative period prior to Father's incarceration in this case spanned August 31, 2014, through December 30, 2014 ("determinative period"). We note, however, that this one-day difference in the end of the determinative period does not affect the outcome of this action or the issues raised on appeal.

         A. Willful Failure to Support

         Father contends that the trial court erred by finding that he willfully failed to financially support the Children during the determinative period. In its memorandum opinion incorporated into the final judgment, the trial court specified the following, in pertinent part, regarding the statutory ground of willful failure to support the Children:

Father has worked many different jobs. He worked at Krystal's, Affordable Tree Service, LQM staffing, a roofing company, a cheese factory[6] and Quik Stop. Father has an affable personality with an accompanying intellect. The Court credits Mother's testimony that Father never kept a job for a long time but that he had no trouble securing new employment. Father admitted that he had the ability to work and support his children. Prior to receiving custody of the minor children in 2011, maternal grandparents allowed Father and Mother to move into their home to help support them. While the parents were living there, Father broke into the Maternal Grandparents' locked bedroom and stole his son's Gameboy and the Maternal Grandparents' jewelry.[7] Father admits that his only financial support over the five years that custody of his minor children has been removed from him is a $100 money order, six or seven weeks of health insurance in 2013, some toys and a bag of clothes.
* * *
Although counsel for Father argued that there was no court order requiring Father to pay support, Father acknowledged his awareness to provide financially for his minor children. Father testified that he was not incarcerated except for approximately 10 to 20 days in 2014. Father had a long history of employment, had no disabilities and continued to fund his drug habit while [Maternal Grandparents] provided for his children. Father's paramour stated that starting in March 2014, Father was using Roxicodone a couple times a day at the cost of $35 per pill. Father's last employer paid him $10 an hour. Father admitted that he willfully made no payments from August 31, 2014 until December 31, 2014. Father was forced to list the minor children on his insurance through his employment at Krystal's and they were covered by his insurance between June 24, 2013 and August 5, 2013. Father admitted that his only financial payment to [Maternal Grandparents] was $100 at some point during the five years that [Maternal Grandparents] have had the children. The Court credits [Maternal Grandparents'] testimony that the $100 was not during the essential time period. Father also testified to bringing toys and some clothes to [Maternal Grandparents'] house but not during the four months preceding his incarceration. Even if the payment and items had been given during the four month period, the Court finds them to be token support. See In re Audrey S., 182 S.W.3d 838, 867 (Tenn. Ct. App. August 25, 2005). The Court finds by clear and convincing evidence that Father willfully failed to support his children from August 31, 2014 until December 31, 2014. Further the Court finds that since March 21, 2011, Father has willfully not supported his children.

         The trial court therefore found that Father had willfully failed to provide more than token support of the Children during the years they were in Maternal Grandparents' custody, inclusive of the determinative four-month period prior to Father's December 31, 2014 incarceration. See Tenn. Code Ann. ยง 36-1-102 (1)(B) (Supp. 2016) (defining "token support" to mean that "the support, under the circumstances of the individual case, is insignificant given ...


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