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In re Brennen T.

Court of Appeals of Tennessee, Nashville

October 12, 2017

IN RE BRENNEN T.[1]

          Session August 23, 2017

         Appeal from the Chancery Court for Robertson County No. CH-11-CV-10234 Laurence M. McMillan, Jr., Chancellor.

         This appeal involves the termination of a mother and father's parental rights to their minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent's parental rights on the statutory ground of abandonment for failure to remit child support. The court further found that termination of each parent's rights was in the best interest of the child. The parents appeal. We affirm.

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

          Brandi L. Jones, Springfield, Tennessee, for the appellant, Nicole S. F.

          John B. Holt, Springfield, Tennessee, for the appellant, Kenneth E. T.

          Kimberley L. Reed-Bracey, Goodlettsville, Tennessee, for the appellees, Kareena S. V. and Scott L. V.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J. and Andy D. Bennett, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Brennen T. ("the Child") was born to Nicole S. F. ("Mother") and Kenneth E. T. ("Father") in November 2009. Mother and Father (collectively "the Parents") married approximately five months later. Paternal relatives, Kareena V. ("Aunt") and Scott V. ("Uncle") (collectively "the Petitioners") have maintained custody of the Child over the Parents' objection since he was ten months old. This is the second appeal concerning the attempted termination of the Parents' parental rights. In the first appeal, we recounted the facts as follows:

The [Child] lived with [the Parents] from birth until September 13, 2010, when the [C]hild was approximately ten months old. At that time, [the Parents] arrived at the home of paternal grandfather and allegedly indicated that they were facing eviction, and had no food or diapers for the [C]hild. Further, they were allegedly watering down the [C]hild's formula to make it last longer. According to [the Parents], they merely intended to seek financial assistance from paternal grandfather. Upon their arrival, [the Parents] learned from paternal grandfather that paternal grandfather and [Aunt] were leaving for a vacation to South Carolina. At the suggestion of [Aunt], [the Parents] allowed the [C]hild to go on vacation with [Aunt], upon being advised they would be gone only a few days. Mother, at [Aunt's] request, signed a letter authorizing [Aunt] to seek medical attention for the [C]hild in the event of an emergency. During this trip, [Aunt] allegedly began seeking legal counsel in an effort to obtain custody of the [C]hild when [the Petitioners] returned to Tennessee. On their return from vacation, both Mother and Father were sick with either pertussis or pneumonia. Because of their illnesses, [Aunt] told them she should keep the [C]hild until they were no longer contagious.
Without informing [the Parents], [the Petitioners] filed an emergency petition for Dependency and Neglect in the Juvenile Court of Robertson County, Tennessee on September 21, 2010. As a result of the filing, [the Petitioners] obtained an ex parte order granting them temporary custody of the [C]hild. While still recuperating, [the Parents] visited the [C]hild at [the Petitioners'] residence on September 23, 2010. During this visit [Aunt] failed to inform [the Parents] that she had filed the dependent and neglect petition and had obtained a custody order on the previous day. Due to their illnesses, [the Parents] left the [C]hild in [their] care.
Between September 23, 2010 and October 2, 2010, [the Parents] attempted on several occasions to contact [the Petitioners], but were denied any contact until October 2, 2010. On October 2, 2010, contact was finally made with [Aunt] and a dispute arose. Father advised [Aunt] that he was coming to retrieve the [C]hild and at this time [the Petitioners] disclosed that they had already obtained custody of the [C]hild, without [their] knowledge, and would call the police if Father came to get him.

In re Brennen T., No. M2013-01451-COA-R3-PT, 2014 WL 2841078, *1 (Tenn. Ct. App. June 19, 2014). Two days later, on October 4, 2010, the Parents filed a request for a 72-hour hearing. The hearing convened on October 7, 2010; however, the court continued the hearing to allow the Parents time to retain counsel. Once they retained counsel, a final hearing was set for April 14, 2011. This hearing never occurred because the Petitioners filed their first termination petition on February 8, 2011, alleging abandonment for failure to visit and support the Child.

         The Parents denied the allegations, and Mother filed a counter-complaint, alleging malicious use of process, kidnapping, and perjury. The case proceeded to a hearing, after which the trial court found that the Petitioners failed to establish grounds for termination and that termination was not in the best interest of the Child. The court did not rule on Mother's claims.

         The Petitioners appealed to this court. During the pendency of the appeal, they filed a motion to consider post-judgment facts.[2] We denied the motion, finding that the facts were not truly post-judgment facts and that the relief requested should be sought through a Rule 60 motion. The Petitioners then filed a Rule 60 motion, which was denied by the trial court for lack of jurisdiction given the pending appeal. Thereafter, we dismissed the appeal for lack of a final judgment because the court never ruled upon Mother's outstanding claims for malicious use of process, kidnapping, and perjury. In re Brennen T., 2014 WL 2841078, at *6.

         Upon remand, the contentious litigation between the Parties continued. Meanwhile, the Parents were provided weekly visitation for one hour each Sunday at a McDonald's in Springfield, Tennessee. Neither parent lives in Springfield, but they regularly commuted from Lebanon and Clarksville for visitation.

         On April 20, 2015, the Petitioners filed the instant petition to terminate, again alleging abandonment for failure to visit and support. The Parents objected and ancillary litigation ensued until they filed a notice of voluntarily dismissal of all pending tort claims. These claims were dismissed without prejudice by order of the court on October 19, 2015. The Petitioners eventually responded in kind with their own notice of voluntary dismissal of their responsive tort claims. These claims were dismissed without prejudice by order of the court on November 9, 2015.

         The case proceeded to a hearing on the termination petition on May 18, 2016. At that time, the Child had been in the continuous care of the Petitioners since September 2010. The Parents had not remitted child support since April 2014, despite an agreement to remit payment in the amount of $200 per month.

         Uncle testified that he works in the Human Resources Department for the Tennessee Army National Guard. He holds the rank of Major but claimed that it was unlikely that he would receive deployment orders due to his current career track. He provided that he and his wife live in Greenbrier, Tennessee, where they own their home. He noted that the Child has lived with them in that home for approximately five years. He asserted that he is capable of providing for the Child and expressed intent to adopt him if permitted by the court. He claimed that the Child excelled in school but had exhibited some concerning behavior as a result of the ongoing litigation. He asserted that the Child appeared fearful following certain visitations as evidenced by bedwetting and no longer wanting to sleep alone. He explained that the Parents argued with the Child during visitation regarding their identity as the Child's biological parents and engaged both the Petitioners in verbal altercations.

         Relative to child support, Uncle testified that neither parent remitted child support during the four months preceding the filing of the termination petition on April 20, 2015. He further claimed that he had not received any payments since April 2014, despite the fact that the Parents had maintained periods of employment. He noted that the Parents often quit employment or were fired on multiple occasions. He provided that Mother was employed during the relevant time period, while Father quit his current job and moved to Michigan for approximately three months.

         Relative to visitation, Uncle provided that he attended the visitation without Aunt because her presence often elicited altercations between the Petitioners and the Parents. He noted that he kept a record of the visitation history, beginning in July 2015, after the filing of the termination petition. He claimed that his records indicated that Mother missed approximately three visitations due to transportation or other issues, while Father missed visitation "numerous times" in the past year. He agreed that the Parents provided approximately $50 in groceries at visitation after the instant termination petition was filed. He also agreed that the Parents provided crafts, toys, gifts, and clothes on occasion.

         Uncle expressed concern regarding the Parents' ability to care for the Child. He provided that Father had been hospitalized for suicidal ideation in November 2015 and was also diagnosed with a heart condition as a result of long-term drug usage. Father admitted during depositions in September 2015 to smoking marijuana and using cocaine. Uncle recalled that Father also indicated that Mother had relapsed as well. He provided that Mother was arrested on October 31, 2015, for simple possession of marijuana and had also been charged with domestic violence. He acknowledged that Mother claimed that the drugs belonged to Father only and that the charges were later dismissed.

         Aunt testified that she has been employed in the medical profession for approximately ten years as a nurse and that she currently works for Centennial Medical Center as a Transitional Care Coordinator. She too expressed intent to adopt the Child.

         Aunt provided that visitation was not ordered until after the filing of the initial termination petition. She claimed that she and Uncle complied with the court's visitation order to the best of their ability. She explained that she no longer attended visitation because of the altercations that inevitably ensued when she was present. She noted that Uncle facilitated visitation in compliance with the court's order. She acknowledged that Mother only missed two or three visitations during the relevant time period.

         Relative to child support, Aunt confirmed that the Parents failed to remit support during the relevant time period. She agreed that the Parents provided crafts, toys, and clothes on occasion. She acknowledged that Mother also bought groceries three times in 2016. She noted that Mother indicated that they were responsible for remitting $250 payments to their attorney each week for approximately four or five weeks to represent them for their tort claims that were later voluntarily dismissed. She claimed that Mother advised her that she did not intend to secure employment because she was starting a nonprofit organization related to the custody and termination proceedings. She noted that Mother was currently ...


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