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In re Brantley B.

Court of Appeals of Tennessee, Nashville

October 30, 2017

IN RE BRANTLEY B.[1]

          Session September 6, 2017

         Appeal from the Chancery Court for DeKalb County No. 2016-AD-3 Ronald Thurman, Chancellor

         Mother appeals the termination of her parental rights to her son resulting from a petition for termination and adoption filed by her son's Father and Stepmother. The trial court terminated Mother's rights on the grounds of abandonment by failure to support and persistence of conditions, and on a finding that termination was in the child's best interest. Upon a thorough review of the record, we reverse the termination of Mother's rights on the ground of persistence of conditions; we affirm the termination of her rights on the ground of abandonment by failure to support and the holding that termination is in the child's best interest.

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

          Rachel M. Thomas, Nashville, Tennessee, for the appellant, Lydia P.

          Kelsy Miller, Cookeville, Tennessee, for the appellees, Justin B. and April B.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         The child that is the subject of this action, Brantley B., was born to Lydia P. ("Mother") and Justin B. ("Father") in February 2012; Mother and Father were not married at the time of his birth. On December 19, 2012, Father filed a petition alleging that he had taken custody of Brantley because Mother was using drugs and was suicidal, was purchasing drugs in Brantley's presence, and was addicted to drugs and in need of treatment; Father sought to have Brantley declared dependent and neglected and to be awarded custody of him. An ex parte order was entered on that date, holding that there was probable cause to believe that Brantley was dependent and neglected and restraining Mother from interfering with Father's custody, and setting a preliminary hearing for January 3, 2013. The matter was heard on that date, and on January 8 the court entered an agreed order appointing counsel for Mother, appointing a guardian ad litem, and continuing the December 19 restraining order.

         On March 31, 2016, Father and his wife April B. ("Stepmother"), collectively "Petitioners, " filed a petition to terminate Mother's parental rights to Brantley and for adoption by Stepmother. The petition alleged, inter alia, that Mother had a "longstanding substance abuse problem, " and that she had failed to pay child support during the time Brantley had been in Father's custody. As grounds for termination, the petition asserted abandonment by failure to pay child support in the four months preceding the filing of the petition, Tennessee Code Annotated sections 36-1-113(g)(1) and -102(1)(A)(i), and persistence of conditions, Tennessee Code Annotated section 36-1-113(g)(3); the petition also alleged that terminating Mother's rights was in Brantley's best interest. Mother filed an initial response, pro se; she subsequently retained counsel, who also filed an answer to the petition. A guardian ad litem was appointed, and the case proceeded to trial on October 25, 2016, at which Mother, Stepmother, Father, Mother's father, and Mother's mother testified.

         The court entered an order on November 12, 2016, holding that both grounds for termination were established by clear and convincing evidence and that it was in Brantley's best interest that her parental rights be terminated. Mother appeals, asserting that neither the grounds for termination nor the best interest determination were proven by clear and convincing evidence.

         II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

         Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proven by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence, that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id. In this regard, clear and convincing evidence is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence" and which "produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established." In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

         III. Analysis

         A. Abandonment by Failure to Support

         Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in pertinent part:

For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment" means that:
(i) 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[.]

Tenn. Code Ann. § 36-1-102(1)(A). A failure to support 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 re Audrey, 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).

         With respect to this ground, the court made the following finding:

In this case, as it relates to the ground of abandonment, the Respondent testified that she has not paid child support in the four months preceding the filing of the petition, the filing being March the 31st of 2016. She also testified that she worked during this period of time. By her own admission, she was capable of paying child support, and there was no proof presented to indicate that she was unable to work and provide for the child. The evidence showed that she has worked in at least eight different positions during the child's life, most of which were paying her more than minimum wage, yet she paid no support. She also had very little living expenses at [the] time, due to not paying rent. Under relevant case law, whether there is a child support order or not, a parent has a moral obligation to support their children. Even so, there are a number of orders, some of them being made an exhibit to these proceedings that set forth a child support obligation through the Juvenile Court of Dekalb County. From the proof, there has been no support paid. * * *
Therefore, the Court finds by clear and convincing evidence that Respondent willfully abandoned the child by failure to pay child support.

         Mother concedes, and her testimony along with that of Father and Stepmother, confirms, that she did not pay any child support during the four months preceding the filing of the petition, November 30, 2015, to March 30, 2016 (the "relevant time period" herein). She contends that her failure to pay support was not willful because she had a rent obligation during the time period; she also asserts that she had a justifiable excuse because "the child support office[] represent[ed] that the case was closed."

         With respect to her awareness of the duty to support Brantley, Mother cites her testimony that "Judge Cook told me to go through the state" but she was "never instructed" to pay Father directly, and argues that she was "not aware of a stand-alone duty to support - she believed that she was supposed to pay child support through the child support office." This argument, however, is contrary to the law and the evidence.

         "All parents have a duty to support their children." In re M.J.B., 140 S.W.3d 643, 655 (Tenn. Ct. App. 2004). The record includes an order entered on June 5, 2014, in the dependent and neglect proceeding, setting Mother's child support obligation at $46.85 per week, which Mother was ordered to pay directly to Father. Mother also testified that she was aware of her child support obligation and that Brantley needed clothes and food, which only Father was providing. Accordingly, there is clear and convincing evidence that Mother was aware of her duty to support Brantley.

         As to the capacity or ability to pay her support obligation, Mother argues on appeal:

In its Order, the trial court cited erroneous facts regarding whether Mother was employed and had to pay rent. Had the trial court considered that Mother was living somewhere that did cost rent and was unemployed for a significant portion of the four-month period, it might have found that ...

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