In the Matter of Ian B. et al.
Assigned on Briefs June 1, 2017
from the Chancery Court for Rutherford County No. 12CV-582
Howard W. Wilson, Chancellor
Father's second appeal of the termination of his parental
rights to the two children he had with his former wife
("Mother"). Father and Mother separated in 2008
when she moved from Alaska to Tennessee with the children,
and they were granted a divorce in 2009. Father has not seen
nor spoken with the children since 2008, and has not provided
any financial support since November 2009. The petition to
terminate Father's parental rights was filed by Mother
and her husband in 2012. In Father's first appeal, we
remanded the case in order to obtain a sufficient record for
this court to review on appeal. In re Ian B., No.
M2015-01079-COA-R3-PT, 2016 WL 2865875 (Tenn. Ct. App. May
11, 2016). On remand, the trial court found that the
petitioners had proven grounds of abandonment for failure to
visit and support and that termination of Father's
parental rights was in the best interest of the children.
This appeal followed. Having determined that the record in
this second appeal is sufficient for this court to conduct a
proper review, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Lyn Graves II, Murfreesboro, Tennessee, for the appellant,
Kenny B. 
C. Girksy, Clarksville, Tennessee, for the appellees, Corey
D. and Amy D.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Thomas R. Frierson II and Brandon O. Gibson,
G. CLEMENT JR., P.J., M.S.
issue in this case are the parental rights of Kenny B.
("Father") with regard to two of his children, Ian
B. and Isaac B. (collectively "the Children"). In
April 2005, Amy D. ("Mother") and Father married.
Their marital relationship, however, was short-lived and
unstable. Mother and Father originally resided in
Arizona but moved when Father was arrested and extradited to
Alaska on robbery charges. Mother, while pregnant with their
youngest child, left Father in 2006 to travel to Florida but
returned to Alaska in 2007. In November 2008, Mother again
left Father, this time permanently. At the time of the move,
Ian was one year old, and Isaac was just shy of three years
old. Mother moved with the Children to Murfreesboro,
Tennessee, where they remained until 2014 when they moved to
Smyrna, Tennessee with Mother's current husband, Corey D.
December 2008, Father filed a divorce action in Juneau,
Alaska. As a part of the divorce petition, Father signed and
attached an affidavit, which listed the address of Mother in
February 2009, Mother filed an ex parte order of protection
in Tennessee against Father alleging Father made threatening
phone calls and that he instructed individuals in Tennessee
to threaten Mother. The hearing was held on February 17,
2009. Father did not appear. It is unclear, however, if
Father ever received notice of this hearing. Along with the
ex parte order, Mother filed a petition for an order of
protection. Father did not file an answer to the petition or
appear at the hearing on the order of protection, which was
heard in Tennessee in April 2009. In the resulting order, the
trial court required Father to complete anger management
classes. Father has yet to attend or even attempt to attend
and complete these classes.
interim, in March 2009, Father was attacked and severely
beaten outside of his work place in Alaska. He was taken by
helicopter to the hospital where he spent the next four
months recovering. Father sustained a mental impairment that
caused a multitude of physical and mental problems.
Specifically, Father testified that he was diagnosed with
agoraphobia,  obsessive compulsive disorder, and
post-traumatic stress syndrome.
and Father's divorce was finalized in June 2009, with
Mother receiving full custody of the Children. Father was
ordered to attend an intervention for batterers course due to
the Alaska court's finding that Father had abused Mother
during the marriage. The Alaska court further ordered that
any visitation was to take place only after completion of
this course, that visitation was in the sole discretion of
Mother, and that only supervised visitation was allowed
without a court order. As with the ordered anger management
courses, Father has yet to attempt to attend and complete
this intervention program. The Alaska court also ordered
Father to pay child support. He made sporadic support
payments from June 2007 through November 2009, but he has not
made any support payments since November 2009.
Father was released from the Alaska hospital, he moved to
Arizona to live with his father, who arranged the move.
Father received extensive rehabilitation while in Arizona
where he was under the care of a psychiatrist, a physical
therapist, and a home-care nurse. During his rehabilitation,
Father applied for and received Supplemental Security Income
("SSI"). Father lived in Arizona until January 2010
when he moved to Arkansas to live with his sister.
2011, both Mother and Father found new romantic partners.
Mother subsequently married Corey D.
("Stepfather"), with whom she and the Children
currently live in Smyrna, Tennessee. Father, after dating
Kelly S. ("Kelly") for a period of time while still
residing with his sister, moved out of his sister's home
to reside with Kelly and two of his children from a previous
relationship. Father and Kelly currently reside in a
home in Arkansas that Kelly purchased from the estate of
Father's grandmother for $80, 000. Kelly is the sole
owner of the home.
March 12, 2012, Mother and Stepfather sent a letter to Father
requesting his consent to terminate his parental rights and
allow Stepfather to adopt the Children. Father refused to
consent. On April 12, 2012, Mother and Stepfather filed a
petition to terminate Father's parental rights on the
ground of abandonment and for Stepfather to adopt the
testimony at trial revealed that Father's physical and
mental condition had dramatically improved by 2011. Father
was able to attend Pulaski Tech in Little Rock, Arkansas and
graduate with an associate's degree in
hydrographics; however, Father did not obtain a job after
graduation. In fact, Father turned down job offers because he
and Kelly had plans to open a business in the near future in
which Kelly would own the business and employ
Father. Father also testified that even though he
was given job offers, he was not ready to start working in
the auto body painting profession.
visiting the Children, Father and Kelly testified at trial
that they tried to initiate contact with Mother through
Facebook, but they could not make contact because Mother
"blocked" each party. Father also testified
that his two sons from a prior marriage attempted to contact
Mother via Facebook but again were "blocked."
Father also testified that he had a couple of phone
conversations with Mother in 2009. Mother's testimony
conflicts with these statements. Mother testified that the
only attempted contact from Father was a Facebook friend
request in 2014.
the trial, the court issued an order on March 24, 2015,
terminating Father's parental rights and granting
Stepfather's adoption of the Children. Father timely
appealed that decision. In his first appeal, we vacated the
judgment of the trial court and remanded the case due to the
lack of sufficient record to afford this court the
opportunity to conduct a meaningful review. In re Ian
B., 2016 WL 2865875. In that opinion, we noted that the
trial court could require "the preparation of a full
transcript or so much of the transcript as is germane to the
issues Father raises on appeal." Id. at *2. We
also stated, "[o]nce the transcript is prepared, the
chancery court may enter a new order and memorandum opinion
on the petition to terminate Father's parental rights and
for the Stepfather to adopt." Id. A transcript
of those proceedings was prepared and submitted to the trial
court on September 16, 2016, which the trial court certified
in accordance with Tenn. R. App. P. 24. Thereafter, the trial
court issued a Memorandum and Order in which it found that
Father willfully abandoned the Children and that termination
was in the best interests of the Children. The trial court
also granted Mother and Stepfather's adoption petition.
failed to file his notice of appeal within 30 days on the
entry of that order as required by Tenn. R. App. P. Rule 4.
Nevertheless, on November 3, 2016, Father filed a Motion for
Rule 60.02 Relief in which he set forth reasons why he was
unable to file a timely notice of appeal. Namely,
Father's attorney stated the he (the attorney) mistakenly
took the court's final order as a memorandum due to the
fact the court previously issued a memorandum and then a
final order. Further, the attorney was out of town and then
had to fulfill his duties with regard to his military
commitment. The trial court agreed with Father that this was
excusable and granted the Rule 60.02 motion which
incorporated the September 16, 2016 order. Father filed his
notice of appeal within 30 days of the entry of that order.
Whether the trial court abused its discretion in granting
Father's Rule 60.02 motion.
Whether the trial court properly determined that grounds
existed to terminate Father's parental rights.
Whether the trial court properly determined that the
termination of Father's parental rights was in the best
interests of the Children.
argues that the trial court abused its discretion in granting
Father's Rule 60.02 motion. Specifically, Mother asserts
it was an abuse of discretion to grant the Rule 60.02 motion
because Father did not file an affidavit in support of his
request for relief and Father failed to put forth an
affirmative showing of mistake, inadvertence, surprise, or
excusable neglect. Tenn. R. Civ. P. Rule 60.02 provides:
On motion and upon such terms as are just, the court may
relieve a party or the party's legal representative from
a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) fraud (whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or other misconduct of an
adverse party; (3) the judgment is void; (4) the judgment has
been satisfied, released or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that a judgment should
have prospective application; or (5) any other reason
justifying relief from the operation of the judgment.
Tenn. R. Civ. P. 60.02. While not expressly stated in the
rules, it is "universally recognized that, as a
condition to obtaining relief, the defendant, in addition to
showing that his default was brought about by mistake,
inadvertence or excusable neglect, must also demonstrate that
he has a meritorious defense to the plaintiff's claim . .
. ." Patterson v. Rockwell Intern., 665 S.W.2d
96, 100 (Tenn. 1984). When determining whether neglect is
excusable the court is to consider the equities of the case,
including: the (1) danger of unfair prejudice, (2) the length
of delay and its potential impact on proceedings, (3) the
reason why the filing was late and whether that reason or
reasons were within the filer's reasonable control, and
(4) the filer's good or bad faith. See Ferguson v.
Brown, 291 S.W.3d 381, 388 (Tenn. Ct. App. 2009).
analyzing the equities of the case, the trial court found the
danger of unfair prejudice was minimal, the length of delay
due to an extension was small compared to the overall period,
Father's counsel's mistake was reasonable, and the
equities weighed in favor of Father. The main area of
contention between the parties revolved around Father's
counsel ("Counsel"). The trial court stated that
Counsel's mistake in not filing a timely appeal was
excusable for a number of reasons:
3. Counsel for the Respondent represents to the Court that
his mistaken disregard for the Court's September 23,
2016, [order] was on several factors. One, the Court's
Memorandum Opinion of March 24, 2015 did not contain an Order
effectuating the ruling of the Court. That document requested
Counsel for Petitioners to prepare such Order. Because the
Court essentially reissued its previous Memorandum Opinion on
September 23, 2016 (save for the addition of an Order
catalyzing the ruling), Counsel was under the mistaken belief
that the document once again instructed Petitioner's
Counsel to prepare the final Order. The Court believes this
was a justifiable mistake; however, this alone does not
convince the Court that 60.02 relief should be granted.
4. After the entry of the Memorandum and Order (and its
issuance on September 27, 2016), Counsel for the Respondent
received the document on the same date he was scheduled to
leave the country. Counsel was abroad between September 28,
2016 and October 10, 2016. When he returned, Counsel was once
again taken from his work between October 21, 2016 and
October 30, 2016, as he was under order to present himself
for military service.
5. Matters regarding counsel's mistaken identification of
the Memorandum and Order are further complicated by the slow
communications between the Respondent and his attorney.
Because of the slow communications, when Respondent's
counsel received the Court's Memorandum and Order of
September 23, 2016, he contacted the Respondent only ...