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In re Savanna C.

Court of Appeals of Tennessee, Knoxville

August 31, 2017


          Session Date: April 18, 2017

         Appeal from the Circuit Court for Hamilton County No. 15A222 W. Neil Thomas, III, Judge

         This is a termination of parental rights case involving the parental rights of the father, Jason C. ("Father"), to his minor child, Savanna C. ("the Child"), who was two years of age at the time of trial. The Child was born in 2014 to Father and Katie N. ("Mother"). On November 10, 2014, the Hamilton County Juvenile Court ("juvenile court") granted temporary legal custody of the Child to the maternal grandmother, Kathryn N. ("Maternal Grandmother"). The maternal grandfather, Tommy N. ("Maternal Grandfather"), was later added as a joint petitioner. The juvenile court adjudicated the Child dependent and neglected on August 20, 2015, and ordered that the Child remain in the custody of the Maternal Grandmother and Maternal Grandfather (collectively, "Maternal Grandparents"). On September 21, 2015, Maternal Grandparents filed a petition to terminate Father's parental rights to the Child in the Hamilton County Circuit Court ("trial court"). Following a bench trial, the trial court terminated Father's parental rights to the Child upon determining by clear and convincing evidence that Father had abandoned the Child by willfully failing to visit during the four months preceding the filing of the termination petition. The court also found clear and convincing evidence that termination of Father's parental rights was in the best interest of the Child. Father has appealed.[1] Discerning no reversible error, we affirm.

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

          David Paul Coates, Chattanooga, Tennessee, for the appellant, Jason C.

          Kathy Rowell, Chattanooga, Tennessee, for the appellees, Tommy N. and Kathryn N.

          Charles W. Wheland, III, Chattanooga, Tennessee, Guardian Ad Litem.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.



         I. Factual and Procedural Background

         Upon petition filed by Maternal Grandmother, the juvenile court, in an order entered November 10, 2014, removed the Child from the custody of her parents due to the parents' lack of stable housing and drug addiction, placing temporary custody of the Child with Maternal Grandmother. Maternal Grandfather was not included in the initial custody order, but the juvenile court later added him as a joint petitioner. During a hearing in December 2014, Father submitted to a drug screen administered by the juvenile court and tested positive for oxycodone. Father reported having a prescription for the medication at that time.

         Following removal of the Child from the parents' custody, Father filed a petition for custody in the juvenile court in March 2015, alleging that Mother had an extensive history of drug abuse and was not fit to care for the Child. Father also alleged that Maternal Grandparents had allowed Mother more visits per week than ordered by the juvenile court and had cancelled Father's visits abruptly. Father subsequently withdrew his custody petition, explaining during trial that he had filed the petition when he and Mother "had a break" in their relationship for approximately a week. Father later submitted to a hair follicle drug screen on or about April 10, 2015, with the results indicating that he tested positive for methamphetamine.

         During the pendency of the juvenile case, as the juvenile court record reflects, Father was arrested for public intoxication in March 2015 and for "Driving Under the Influence of an Intoxicant" on May 16, 2015. Following the adjudicatory hearing on July 16, 2015, the juvenile court found by clear and convincing evidence that the Child was dependent and neglected as to Father and Mother due to the parents' lack of stability and progress. The court ordered that custody of the Child remain with Maternal Grandparents.

         On September 21, 2015, Maternal Grandparents filed a petition in the trial court, seeking to terminate the parents' parental rights and adopt the Child. In their petition, Maternal Grandparents alleged as statutory grounds that the parents had abandoned the Child by failing to visit and support her in the four months preceding the petition's filing and that the conditions leading to the removal of the Child from the parents' home persisted. Maternal Grandparents also alleged that termination of the parents' parental rights was in the best interest of the Child. The trial court conducted a bench trial on April 6, 2016.

         During trial, Maternal Grandmother testified at the time she obtained emergency custody of the Child on November 10, 2014, the parents had left the Child with the paternal grandmother ("Paternal Grandmother") and Father's sister, and the Child had missed her nine-month medical check-up. Maternal Grandmother reported that the Child had contracted two ear infections requiring antibiotics within a span of a few weeks. According to Maternal Grandmother, the parents were not present when she picked up the Child from Paternal Grandmother's home. Maternal Grandmother obtained emergency custody from the juvenile court on the day she picked up the Child.

         The juvenile court ordered supervised visits for the parents in early December, which were scheduled to occur twice per week. According to Maternal Grandmother, she allowed the parents to have regular visits prior to that court order. The visits between the parents and the Child took place at public places rather than Maternal Grandparents' home because, as Maternal Grandmother related, Father entered their home while Maternal Grandparents were away and stole blank checks, which he attempted to use. Subsequently, Maternal Grandparents did not allow Father in their home.

         Concerning visitation, Maternal Grandmother kept a chart of the visits that occurred from November 2014 to April 2015. Maternal Grandmother's chart, introduced as a trial exhibit, reflects that there were thirteen visits offered to Father in November and December 2014. Of those thirteen visits, Father failed to appear for six and was late to five others. Maternal Grandmother's chart also reflects that twenty-five visits were offered to Father from January to April 2015. Of those twenty-five visits, Father failed to appear for nine and was late to thirteen others. According to Maternal Grandmother, when Father was late, he was approximately fifteen to thirty minutes late if not later. Maternal Grandmother reported that each visit lasted from one and one-half hours to two hours.

         Although Maternal Grandparents were initially responsible for supervising the visits, in April 2015, the trial court ordered that all supervised visits between the parents and the Child would occur at Path Finders, a private agency providing supervision for visits. This change was by reason of tension between the parents and Maternal Grandparents. Maternal Grandmother reported that the parents' visits were moved to Path Finders because Father was harassing Maternal Grandparents. According to Maternal Grandmother, the parents were more concerned with the relationship between Mother and Father than the welfare of the Child. Maternal Grandmother explained that once the visits were changed to Path Finders, Father did not visit the Child again until January 2016.

          On one occasion, Mother contacted Maternal Grandmother in the summer of 2015, requesting contact information for Path Finders so that the parents could schedule a visit. It is undisputed that Maternal Grandmother provided Mother with the requested information. However, the visit never took place. Maternal Grandmother indicated that she did not assist the parents with the $45 visitation fee because she believed it to be the parents' responsibility. According to Maternal Grandmother, she and Maternal

         Grandfather had paid for the Child's birth expenses and had offered to pay for Mother's individual counseling or rehabilitation. Maternal Grandmother testified that the parents had agreed to pay $101 a month toward the birth expenses but never paid anything.

         Concerning financial support, Maternal Grandmother further testified that the parents never offered to provide any money to Grandparents for the Child's care, although the parents did provide gifts, including toys, a book, clothes, and marking pens. Maternal Grandmother explained that she had never rejected any gifts that the parents gave her for the Child. When asked why Maternal Grandparents filed the petition in this matter, Maternal Grandmother responded:

Because [the parents] showed no interest in [the Child]. There were no visits. There was no contact from April till September. There was not one e-mail. There was not one text. There was not one phone call to ask about how is [the Child] doing. They know nothing about any medical. They never ask about doctor visits. They know nothing about their daughter. And we want to provide her with the same stable home where she has structure, that she was loved, and that she doesn't have to worry where is she going to live this time.

         With reference to the Child's current home environment, Maternal Grandmother testified that she loved the Child and believed that she and her husband could provide an appropriate home for the Child. Maternal Grandmother reported that the Child was thriving in their home. Maternal Grandfather added that he also loved the Child and wished to adopt her.

         During the course of trial, Maternal Grandparents presented evidence of Father's prior criminal conduct. Mirza Muretcehajic, a law enforcement officer, testified that he responded to a call at the parents' home on March 4, 2015, at which time Mother was "not in the right state of mind." Father informed Officer Muretcehajic that they were former users of methamphetamine and that Mother had locked herself in the bathroom. Officer Muretcehajic testified that Mother "wasn't making much sense" but that she had reported to him that she had not slept for three days and was not feeling well. According to Officer Muretcehajic, he observed drug paraphernalia in the bedroom of the home, including a pipe and residue. He did not remember observing a child in the home.

          Officer Jeff Buckner with the Chattanooga Police Department testified regarding Father's arrest on May 16, 2015. Officer Buckner reported that police officers initially responded to the scene following reports that an individual was unresponsive at a gas station. According to Officer Buckner, Mother was responsive upon his arrival to the scene. Observing that Father appeared to be under the influence at the time, Officer Buckner conducted a field sobriety test. Officer Buckner arrested Father for driving under the influence, violation of implied consent, and possession of a drug for resale. Mother was also arrested for public intoxication.

         Father testified that he was subsequently arrested for public intoxication on March 26, 2016. Father, however, denied being intoxicated at the time of the March 2016 arrest. Father claimed that he had driven back to Tennessee from Atlanta and had pulled his vehicle over at a Dollar General store "to take a nap." Father otherwise exercised his Fifth Amendment right to remain silent, declining to answer further questions about the incident.

         Father also testified regarding his residential circumstances, stating that from November 2014 to January 2015, the parents lived with Paternal Grandmother. In January 2015, the parents moved to a home with friends and entered into a month-to-month lease, paying $350 per month in rent. They resided there until August 2015, after which they lived in their van for approximately two or three weeks. In September 2015, the parents returned to Paternal Grandmother's house. According to Father, the parents paid $400-450 a month for rent, food, and utilities while sleeping on the living room couch in Paternal Grandmother's home. Father testified that he and Mother had relocated to a new townhouse three days prior to trial. According to Father, he and Mother currently resided in a townhouse with his niece, sleeping in the living area. Father explained that he and Mother were not parties to the townhouse lease.

         With reference to his work history, Father testified that he was currently unemployed. According to Father, he possessed qualifications in the fields of information system security, web design, and network engineering, with experience specifically in "network operation control, Cisco routing, server configuration, different things of that nature." Regarding his previous employment, Father testified that he had been employed by the Go2IT Group as an IBM consultant from April to August 2015. He indicated that although he was earning $17 or $18 per hour while working approximately eight or nine hours a day for three or four days per week, he would have periods of two or three weeks with no work during this time. Father testified that he was able to pay the parents' rent out of one paycheck from Go2IT. Father further stated that he was employed by Staffing Solutions, working at Amazon, from November 2, 2015, until January 3, 2016, earning $12 per hour. He left his employment at Amazon due to an injury but had been released to return to work. Subsequently, Father had been employed by Blue Marketing, assisting with web design, until February 27 or 28, 2016.

          Father explained that he did not visit the Child between April 10, 2015, and late December 2015 due to the $45 visitation fee at Path Finders. Although Father claimed he visited with the Child in December 2015, he admitted that he had no proof that he had visited the Child between April 10, 2015, and January 2016. According to Father, he did not visit because he and Mother were "unemployed off and on" and trying to "get settled in a place and get on [their] feet." Father began visiting the Child in January 2016 and visited at least five times between January and February 2016. However, he did not begin visiting the Child immediately upon receiving income from Amazon because he was "catching up on bills, " including paying some credit card bills, student loans payments, and money owed to immediate family members.

         Father related that he possessed prescriptions for Adderall and Xanax for attention deficit hyperactivity disorder ("ADHD") and generalized anxiety. According to Father, he spends $47 to $56 per month on those prescriptions. Father explained that he was unable to function normally or hold a job without the medication. Father also testified that he had previously taken pain medication for his back condition when he could afford it but that he was not currently under the care of a physician for pain management. Father maintained that he had completed a drug assessment and mental health assessment but had not completed drug treatment because he was waiting on the results of the drug assessment. Father did not present copies of the assessments to the trial court.

         Acknowledging that he had been ordered by the court to pay $328 per month in child support, Father admitted that he had not paid any support for the Child. Father insisted that he had offered the Maternal Grandparents financial support for care of the Child but that they had refused the money. Father related that although he and Mother attended a concert in October 2015, he did not pay for the tickets because they were provided to him as a birthday present.

         It is undisputed that Mother and Father remained in a relationship at the time of trial. Mother reported that she and Father had moved out of Paternal Grandmother's home three days prior to the termination trial. Mother confirmed that the parents' names did not appear on the lease for their new residence. According to Mother, the parents planned to reside with Father's niece for six to eight weeks until they acquired their own apartment. Concerning drug use, Mother reported that she had smoked marijuana with Father previously but denied that they would "shoot up together."

         According to Mother, she had secured two jobs three weeks prior to trial. Mother admitted that there was no reason she could not have worked before except that she had a "very bad addiction." Mother also testified that she was previously employed through a staffing agency from November 2015 through February 2016. Despite the parents' reported attempt to locate the phone number for Path Finders after receiving Mother's first paycheck from the staffing agency, she later e-mailed Maternal Grandmother, who provided her with contact information for Path Finders. According to Mother, the parents' attempts to schedule a visit continued, but scheduling was delayed for weeks because of the holidays.

         Following trial, the court took the matter under advisement. On April 29, 2016, the trial court entered its Memorandum and Order, dismissing Maternal Grandparents' termination petition upon finding that Maternal Grandparents had not proven a ground for termination of parental rights by clear and convincing evidence. Maternal Grandparents filed a motion to alter or amend the trial court's judgment, requesting that the trial court reconsider its dismissal of the termination petition.

         Following a hearing, the trial court issued a Memorandum and Order on July 8, 2016, granting Maternal Grandparents' motion to alter or amend upon acknowledging that the court "incorrectly rel[ied] upon evidence . . . subsequent to the four month period to justify the conclusion that [Mother and Father] made attempts to see their daughter and had not, therefore, abandoned their daughter." The trial court recognized that the January and February 2016 visits were outside of the relevant four-month time period. Ultimately, the trial court found clear and convincing evidence to support the ground of abandonment for willful failure to visit as to Father and Mother.[2] The trial court also determined by clear and convincing evidence that termination of Father's and Mother's parental rights was in the best interest of the Child.[3]

         Following the termination of his parental rights, Father timely appealed. On November 2, 2016, Mother requested that this Court "dismiss her appeal and remove her from the case as an appellant." This Court entered an ...

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