Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Billy T.W.

Court of Criminal Appeals of Tennessee, Knoxville

September 27, 2017

IN RE BILLY T.W., ET AL.

          Assigned on Briefs Date: August 1, 2017

         Appeal from the Juvenile Court for Loudon County No. 16-JV-59 Henry E. Sledge, Judge

         In this parental termination action, we conclude that the trial court properly found clear and convincing evidence to terminate the rights of the mother and father on the grounds of failure to provide a suitable home, substantial noncompliance with a permanency plan, and persistence of conditions. We conclude that the trial court erred in terminating the father's rights on the ground of willful failure to visit. Clear and convincing evidence supports the trial court's determination that termination of parental rights is in the best interest of the children.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part and Reversed in Part

          Christine L. Dummer, Knoxville, Tennessee, for minor children Billy T.W. and Emily G.W.

          Ian P. McCabe, Knoxville, Tennessee, for the appellant, Billy T.W.

          Christopher Irvin Belford, Knoxville, Tennessee, for the appellant, Christy A.W.

          Herbert H. Slatery, III, Attorney General and Reporter, and William Derek Green, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Christy A.W. ("Mother") and Billy T.W. ("Father") are the parents of a son, Billy, and a daughter, Emily, born in February 2003 and December 2005, respectively. The Department of Children's Services ("DCS" or "the Department") filed a Petition for Order Controlling Conduct and for Protective Supervision against Mother and Father in January 2015 asking the court to find the children dependent and neglected, "to require protective supervision, and to control the conduct of the parents." The petition alleged that the family had "extensive DCS history and the parents have criminal history for drugs, assault, and theft." After receiving a report that Mother was selling her food stamps to buy pain pills, that Emily was begging neighbors for food, that Billy's feeding tube was "unkempt, " and that "the home was cluttered with food, trash and other items, " DCS case manager Brittni Monroe visited the home on September 30, 2014. Mother "tested positive for opiates, oxycodone, and benzodiazepines." She refused a request for a pill count. Mother submitted to a drug screen on October 29, 2014 and tested positive for oxycodone; she refused to allow a pill count or to sign a release to permit the case manager to obtain information from her pharmacy.

         On January 27, 2015, the juvenile court held an adjudicatory hearing regarding Father, who had notice of the hearing but failed to appear. The court determined that Father had been uncooperative with the investigation and that the children were dependent and neglected. The court ordered Father to complete an alcohol and drug assessment, "submit and pass random drug screens and pill counts, sign releases for DCS and GAL [guardian ad litem] to obtain service provider and pharmaceutical and medical records, cooperate with DCS and service provider and GAL, obtain and maintain stable housing, transportation and income."

         At a hearing on April 17, 2015, the juvenile court awarded temporary custody of the minor children to DCS. The court found that the Department had "attempted a less drastic measure than removal by first filing a petition to control conduct and by placing services in the home." The court's order (entered on April 20, 2015) includes the following findings concerning the Department's efforts after the initial order in January 2015 finding the children dependent and neglected:

DCS caseworker, Jennie Barger, attempted to contact [Father] on April 4, 2015 and have him come to her office for a random drug screen. Ms. Barger was unable to locate [Father]. On April 17, 2015, Ms. Barger made an unannounced, unscheduled visit to the home of [Father and Mother]. [Father] was unavailable and [Mother] was unable to contact him. Ms. Barger also noted that [Mother] appeared to be under the influence. . . . After leaving the home, Ms. Barger made contact with [the children] at school. Billy has a feeding tube. Ms. Barger testified Billy appeared tired, dirty and not well cared for.

         The parents were allowed supervised visitation with Billy and Emily. Father was ordered to pay child support in the amount of $100 per month.

         On May 4, 2015, DCS filed a petition in response to a bench order summarizing the caseworker's allegations concerning the case, requesting that the court consider the need to appoint counsel for the parents, find the children dependent and neglected at a final hearing, and consider the ability of the parents to pay child support. At a hearing on July 13, 2015, both parents waived the adjudicatory hearing and stipulated that the children were dependent and neglected by Mother for improper care and supervision pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(C) and by Father for abuse and neglect pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(G).[1] The court went on to conduct a permanency hearing and found both parents to be in partial compliance with their permanency plan. (The requirements of the permanency plan will be discussed in the analysis section of the opinion.) The goals of the permanency plan were return to parent and exit custody with relative. The court ratified the permanency plan.

         The Department filed the petition to terminate parental rights on February 4, 2016. The petition alleges five grounds for termination: (1) abandonment by failure to visit in the four months preceding the filing of the petition (Father only), (2) abandonment by failure to provide a suitable home, (3) substantial noncompliance with the permanency plan, (4) persistent conditions, and (5) abandonment by wanton disregard (Mother only). The juvenile court heard the case on October 7, 2016, and the only witness to testify was Eric Fannin, a DCS representative. The trial court determined that there was clear and convincing evidence to support four of the five grounds alleged: abandonment by failure to visit (Father), abandonment by failure to provide a suitable home (both parents), substantial noncompliance (both parents), and persistent conditions (both parents). The court did not find clear and convincing evidence to support the ground of wanton disregard.[2] Furthermore, the court concluded that it was in the children's best interest for the parents' rights to be terminated. Therefore, the court ordered the termination of Mother's and Father's parental rights.

          Both parents have appealed and challenge all of the grounds for termination found by the trial court as well as the best interest determination.

         Standard of Review

         Under both the federal and state constitutions, a parent has a fundamental right to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). This right is not absolute, however. If a compelling state interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75 (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). A parent's rights may be terminated only where a statutory ground exists. In re Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         Because terminating a parent's fundamental parental rights has severe consequences, termination cases require a court to apply a higher standard of proof. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). First, a court must determine by clear and convincing evidence that at least one of the statutory grounds for termination exists. Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). After a court makes this determination, a court must find by clear and convincing evidence that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d at 546. "Clear and convincing evidence 'establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'" In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

         Because of the heightened standard of proof required in termination cases, we must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Id. Next, we must determine whether the facts establish by clear and convincing evidence the elements necessary to terminate parental rights. In re M.J.B., 140 S.W.3d at 654.

         Analysis

         1. Abandonment by failure to visit-Father

         A parent's rights may be terminated upon proof by clear and convincing evidence that the parent "abandoned" his or her child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1). There are a number of different statutory definitions of abandonment. See Tenn. Code Ann. § 36-1-102(1)(A). Tennessee Code Annotated section 36-1-102(1)(A)(i) defines abandonment as follows:

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[.]

         A court must find that the abandonment was "willful." Tenn. Code Ann. § 36-1-102(1)(A)(i). The statutory definition of "willfully failed to visit" is "the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Tenn. Code Ann. § 36-1-102(1)(E). Tennessee Code Annotated section 36-1-102(1)(C) defines "token visitation" as "perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child."

         To establish willfulness in this context, a petitioner must show that "a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013); see also In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (stating that a person acts willfully if he or she knows what he or she is doing and has the intention to do what he or she is doing). "Whether a parent failed to visit or support a child is a question of fact. Whether a parent's failure to visit or support constitutes willful abandonment, however, is a question of law." In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). A parent will not be found to have abandoned his or her child if the failure to visit the child is not within his or her control. Id.

         The four months prior to the filing of the petition to terminate Father's parental rights in this case are from October 4, 2015 to February 3, 2016. The trial court found that Father "willfully did not visit [the children]" during this time period. The trial court specifically found that Father was not incarcerated during the relevant time period, that he knew that the children were in DCS custody, that DCS contacted Father to arrange visits, and that Father "knew the consequences of [his] failure to visit the child[ren] regularly because DCS and the Court told him . . . ." Mr. Fannin testified that Father decided to move to Louisiana for employment and that Mr. Fannin explained that DCS could not facilitate visitation outside of Tennessee.

          It is undisputed that Father failed to visit the children during the four months prior to the filing of the petition. Father's argument is that the trial court's finding of abandonment is erroneous in light of Father's "reasonable efforts" toward reunification. Tennessee Code Annotated section 36-1-102(1)(A)(i) does not include a "reasonable efforts" analysis. We will, however, consider the facts cited by Father in considering the issue at hand-whether Father's failure to visit as a result of his relocation to Louisiana for employment was willful.

         The burden of proof is upon DCS to prove willfulness by clear and convincing evidence. See In re Lynx C., No. E2016-01568-COA-R3-PT, 2016 WL 7378801, at *5 (Tenn. Ct. App. Dec. 20, 2016). Did Father's decision to move to Louisiana for employment constitute a justifiable excuse for failing to visit his children? [3] See In re Audrey S., 182 S.W.3d at 864 ("Failure to visit or support a child is 'willful' when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so."). In evaluating willfulness, courts may consider events that occurred prior to the relevant four-month period because such events "may bear on the willfulness of the parent's conduct during the four-month period." In re Jamie G., No. M2014-01310-COA-R3-PT, 2015 WL 3456437, at *12 (Tenn. Ct. App. May 29, 2015).

         We find two cases to be particularly instructive regarding the case at hand. In In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *9 (Tenn. Ct. App. Mar. 2, 2009), the appellate court considered whether a mother's failure to visit her children during the four months prior to the filing of the petition to terminate her parental rights was willful. The petition to terminate was filed on May 11, 2007; thus, the relevant four-month period was from January 11, 2007 through May 10, 2007. In re B.D., 2009 WL 528922, at *1. During this four-month period, the mother visited the children on January 2, January 27, and February 9, 2007. Id. at *9. She moved to Illinois in late February 2007 "to be near family support." Id. In concluding that the mother's "less than perfect visitation record is not proof of abandonment by clear and convincing evidence, " Id. at *10, the trial court made the following statements:

A review of the record shows that Mother's visits, while less than perfectly regular, do show that she made efforts to maintain a relationship with her children and have meaningful visits with them. Even when unable to visit, Mother's actions fall short of "willful" abandonment.
Mother visited the children on January 2, 2007, January 27, 2007, and February 9, 2007. The foster mother testified that Mother also visited with the girls in late February or early March 2007. Mother moved to be near family support in Illinois in late February 2007, which made visitations difficult. Nonetheless, despite transportation and financial issues, Mother visited with the minor children on July 27, 2007, March 25, 2008 and March 26, 2008. Mother scheduled a visitation for the weekend of April 12, 2008, but the foster parents failed to deliver the girls for visitation.
Mother made these 2007 visits without assistance to and from Illinois. Even though the caseworker knew that Mother did not have transportation and could not financially afford to travel to Tennessee, the state only began to offer transportation and lodging to Mother after the petition for termination was filed. Once help was offered, Mother's visitations resumed. Furthermore, as the case manager testified, Mother stayed in regular contact with the children by telephone and letters, as was identified in the visitation section of the permanency plan.

Id. at *9.

         The more recent case of In re Caira D., No. M2014-01229-COA-R3-PT, 2014 WL 6680696 (Tenn. Ct. App. Nov. 25, 2014), is factually similar to the present case. In In re Caira D., it was undisputed that the father had not visited his children during the four months prior to the filing of the petition, and the issue was whether his failure to visit was willful. In re Caira D., 2014 WL 6680696, at *6. The family had lived in Indiana, but the mother moved with the children to Tennessee while the father remained in Indiana after the parents separated. Id. at *1. Father asserted that he was not able to make the seven-hour trip from Indiana to Tennessee because he did not have a driver's license and could not afford the cost of traveling. Id. at *7. Father further argued that he "visited" with his children by talking with them over the telephone at least every other week. Id. The DCS caseworker who supervised these telephone calls testified that the father "called his children at least once every other week during the four-month period, and that each phone call lasted approximately twenty minutes." Id. The trial court found that the phone calls amounted to only token visitation. Id.

         The appellate court disagreed, finding that "the evidence fails to establish by clear and convincing evidence that [the father's] telephone visits constituted mere token visitation." Id. The court emphasized that "token visitation" is defined as "'visitation, under the circumstances of the individual case, [which] constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.