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In re T.W.

Court of Appeals of Tennessee, Knoxville

April 17, 2018

In re T.W. et al.

          Session November 14, 2017

          Appeal from the Chancery Court for McMinn County No. 2015-CV-346 Jerri Bryant, Chancellor

         In this termination of parental rights case, J.B.H. and H.D.H. (prospective parents) filed a petition to terminate the parental rights of M.A.W. (mother) and E.R.W. (father) in order to adopt two of their minor children, T.W. and B.W. (the children). S.A.G. (grandmother) and M.W.G. (grandfather[1]) are the maternal grandparents of the children. They joined the prospective parents as co-petitioners. The trial court found clear and convincing evidence that mother and father abandoned their children by willfully failing to visit and support them during the relevant statutory time frame. By the same quantum of proof, the court also determined that termination is in the best interest of the children. Consequently, the court entered an order terminating the parents' rights. Mother appeals the trial court's order terminating her rights.[2] We reverse.

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

          Andrew E. Bateman, Athens, Tennessee, for the appellant, M.A.W.

          Randy Sellers, Cleveland, Tennessee, for the appellees, J.B.H., H.D.H., M.W.G., and S.A.G.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.




         In March 2014, mother and father resided in Autauga County, Alabama, with their two children, B.W. (eight months old) and T.W. (two years old). On March 14, 2014, mother pleaded guilty to theft of property and was subsequently incarcerated. Shortly thereafter, grandmother, who lives in Etowah, Tennessee, was informed that mother was in jail and that father was not taking proper care of the children. Grandmother then drove to Alabama and filed a petition with the Juvenile Court of Autauga County, Alabama, seeking emergency temporary custody of the children. On March 19, 2014, after determining that the children's "medical, nutritional, clothing, and shelter needs [were] not being met" and that the children were "being exposed to narcotics use, abuse, and sales, " the court grant temporary custody to the grandparents.

         A few months later, on June 25, 2014, the Juvenile Court of Autauga County entered a final order, which states, in relevant part, as follows:

         Based upon all evidence it is ORDERED as follows:

The children remain dependent.
The [grandparents] are granted full legal and physical custody of the minor children.
. . .
The Mother and Father shall attend and complete an intensive drug rehabilitation program and pass all drug tests. The parents are allowed telephone access to the children and may send letters/cards, etc. to the children.
Upon completion of the drug program, proof of negative drug screens, proof of stable living arrangements and stable employment, the Mother and Father shall be allowed supervised visitation with the children to be supervised by Petitioners at times/places mutually agreed.
Upon proof of continuous, consistent visitation by the parents, the parents may file for expanded visitation. . . .

(Paragraph numbering in original omitted.).

         Upon entry of this order, grandparents returned to Etowah with the children. A few days later, on or around June 30, 2014, mother sent a birthday card containing $60 to T.W. at the grandparents' home address. Mother testified that she called her children on the telephone multiple times in the days that followed. According to grandmother, mother's calls "upset" the children because mother repeatedly told the children that she would come to get them. Grandmother and mother both testified that in July 2014 the Alabama court revoked mother's right to call her children on the telephone and allowed grandmother to change her telephone number.[3] Grandmother owned two telephones; however, she testified that she only changed one of her telephone numbers.

         In August 2014, pursuant to the Alabama court's order, mother moved to a drug rehabilitation facility. She completed the rehabilitation program in about one month; however, because mother wanted additional assistance, she voluntarily enrolled in two other rehabilitation programs and continued to seek treatment until May 2015. At some point during her rehabilitation treatments, mother gave birth to C.W., over whom she maintains custody and who is not a subject of the present litigation. Mother claims that, while she was in rehabilitation, she attempted to contact her other children by calling grandmother many times utilizing the telephone number that grandmother had not changed. According to mother, grandmother either did not answer her calls or "hung up in [her] face." Grandmother denies that mother ever tried to call her after the Alabama court supposedly suspended her right to telephonic communications. The trial court found grandmother's testimony more credible on this point.

         In November 2014, mother filed a pro se petition in the Juvenile Court of Autauga County, Alabama, for reinstatement of her co-parenting rights. However, because the children were living in Tennessee and mother was living at a residential treatment center in Georgia, the Alabama court ultimately dismissed the petition for lack of personal jurisdiction.

         Meanwhile, grandparents began allowing friends from their church, including prospective parents, to help look after the children. One of the prospective parents testified that he and his wife met the children in September 2014 and baby-sat them six or seven times over the next couple of months.

         When grandfather's health began to decline in the fall of 2014, grandparents asked the prospective parents if they would be interested in helping with the children to a greater extent. The prospective parents agreed to baby-sit the children more frequently and in January 2015 the grandparents executed a power of attorney which gave the prospective parents the authority to make educational and healthcare decisions for the children. By March 2015, the prospective parents were keeping the children six to seven days a week; grandparents still routinely spoke to and visited the children, and the grandparents sometimes kept the children ...

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