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In re Ian B.

Court of Appeals of Tennessee, Nashville

September 13, 2017

In the Matter of Ian B. et al.

          Assigned on Briefs June 1, 2017

         Appeal from the Chancery Court for Rutherford County No. 12CV-582 Howard W. Wilson, Chancellor

         This is 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.

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

          Daniel Lyn Graves II, Murfreesboro, Tennessee, for the appellant, Kenny B. [1]

          Steven C. Girksy, Clarksville, Tennessee, for the appellees, Corey D. and Amy D.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson II and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         At 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.[2] 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.

         In 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 Murfreesboro.[3]

         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.[4] 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.

         In the 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, [5] obsessive compulsive disorder, and post-traumatic stress syndrome.

         Mother 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.

         After 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.

         In 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.[6] 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.

         On 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 Children.

         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;[7] 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.[8] Father also testified that even though he was given job offers, he was not ready to start working in the auto body painting profession.[9]

         As for 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.[10] 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.

         Following 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.

         Father 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.

         Issues

         1. Whether the trial court abused its discretion in granting Father's Rule 60.02 motion.

         2. Whether the trial court properly determined that grounds existed to terminate Father's parental rights.

         3. Whether the trial court properly determined that the termination of Father's parental rights was in the best interests of the Children.

         Analysis

         I. Rule 60.02 Motion

         Mother 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).

         In 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 ...

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