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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