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In re Aden H.

Court of Appeals of Tennessee, Nashville

June 19, 2018

IN RE ADEN H.[1]

          Session June 5, 2018

          Appeal from the Circuit Court for Sumner County No. 2015-CV-554 Joe H. Thompson, Judge

         The mother and step-father of a child appeal the denial of their Petition to Terminate the Parental Rights of the father of the child on the grounds of abandonment by failure to support. Upon a thorough review of the record, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed

          James B. Hawkins, Gallatin, Tennessee, for the appellants,

          Victory M. and Natalie M. Thomas H. Miller, Nashville, Tennessee, for the appellee, Michael H.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John Wesley McClarty, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Facts and Procedural History

         Aden H. was born to Natalie M. ("Mother") and Michael H. ("Father") in August of 2003. At some point after Aden's birth, Victory Amos M. ("Stepfather") came to live with Mother and Father at their home. Stepfather and Mother began a relationship that resulted in the birth of twin boys ("the Twins") in 2010.[2] After the birth of the Twins, Mother and Father separated; in June 2010, Mother and Stepfather moved out of the house they shared with Father, taking Aden with them.

         On March 25, 2014, Father went to the house Mother and Stepfather shared and vandalized the house and two cars in the driveway. Father then crashed his car, totaling it; as a result, he was arrested, charged, and convicted of driving under the influence, vandalism, and evading and resisting arrest. The next day, Mother filed a Petition for an Order of Protection, which was granted on April 1, prohibiting Father from having any contact with Mother, Aden, or the Twins and commanding that he stay at least one-mile away from Mother.[3]

         Mother filed a complaint for divorce on May 21, 2014; a judgment by default granting the divorce was entered on October 3. The court incorporated a parenting plan that had been filed by Mother in the final divorce decree.

         On January 9, 2015, Father filed a Petition to Modify Current/Prospective Child Support ("Petition to Modify"), in Sumner County Juvenile Court; the record does not show that the Juvenile Court took any action on this petition. On May 21, 2015, Mother and Stepfather filed a Petition ("the Petition") in Sumner County Circuit Court to (1) terminate Father's parental rights on the ground of abandonment by failure to support and (2) allow Stepfather to adopt Aden. Father answered and filed a counter-petition on June 26, requesting that the trial court either approve his proposed parenting plan or, alternatively, "establish a parenting plan that provides for the Father to have progressive reasonable and regular parenting time with the minor child." Mother and Stepfather answered the counter-petition on July 30.[4] The juvenile court case was transferred to the Sumner County Circuit Court and consolidated with the current case by order of the Circuit Court, entered February 18, 2016.

         By agreed order entered October 6, 2016, the case was set to be heard on December 16; according to an order entered January 3, 2017, at the prehearing conference:

[Father] . . . raised a threshold legal issue as to the effect and impact of possibly conflicting court orders in regard to the Petitioners' ability to go forward with their petition to terminate the parental rights of the [Father] on the grounds of abandonment for nonpayment of child support.

         Therefore, the trial court directed each party to:

[P]repare, file, and exchange a legal brief . . . on the issue of the effect and impact of possibly conflicting court orders in regard to the Petitioners' ability to go forward with their petition to terminate the parental rights of the [Father] on the grounds of abandonment for nonpayment of child support.

         After the parties submitted their briefs, the trial court entered an order on March 3, 2017, ruling as follows in regards to the ground of abandonment by failure to support:

First, by order of the Juvenile Court for Sumner County . . . [Father] was ordered to pay weekly support of $50.00 for the benefit of Aden . . . and two other minors, pending the results of a DNA test. By a subsequent order dated July 13, 2011 [Father] was disestablished as the father of [Mother's] two other children . . . . Nonetheless, the Juvenile Court modified and increased the Respondent's child support obligation to $75.00 per week for the benefit of Aden . . . . This obligation was not subsequently modified.
Second, on March 28, 2014, [Mother] filed a Petition for an Order of Protection against the [Father] in this court . . . . In her petition, [Mother] incorrectly responded to the following question on the form petition: "Other Court Cases: Are the children that you and [Father] have together involved in any other court case in Tennessee or another state?" [Mother] also checked the following box under the heading: "I ask the court to make the following Orders after the hearing: (check all that apply)."
"11. Child Support: Please order the [Father] to pay reasonable child support."
In the margin next to line 11, the [Mother] handwrote the following comment: "I have custody and he pays child support." An Order of Protection was thereafter entered by this court on April 1, 2014, but despite [Mother]'s request, no child support was ordered.
Third, on May 21, 2014, [Mother] filed for divorce against [Father]. [Father] was properly served but never made an appearance in the divorce proceedings. As a result, an Order of Default and Final Decree of Absolute Divorce was entered by this court on October 3, 2014. As part of the final divorce decree, the court adopted a permanent parenting plan that referenced the previous child support order from Sumner County Juvenile Court. The [Father] was served with a copy of the divorce decree, but notably the street address was misidentified in the certificate of service as "Springfield Drive" rather than the [Father]'s actual street of residence, "Springview Drive."
Even though there are conflicting orders with respect to the [Father]'s child support obligation, those conflicting orders are not dispositive with respect to the [Father]'s obligation to support his minor child.

         The trial court further ruled that "a further evidentiary hearing is required to determine if the respondent's failure to support his child was willful."[5]

         That hearing was held on May 31, 2017. The trial court ruled that "the Petitioners were able to establish that [Father] was aware of his duty to support, they were not able to establish that the father had the ability to support and they were not able to prove the absence of justifiable excuse. Therefore, having failed to prove grounds for termination of [Father]'s parental rights, the best interest inquiry is pretermitted." The trial court also ordered that Mother and Stepfather were responsible for the Guardian Ad Litem's fees.

         Mother and Stepfather raise three issues on appeal:

1. Whether, as a matter of law, the trial court erred in determining that the Appellee/Father's complete failure to support the Child did not constitute willful abandonment.
2. Whether the trial court erred in pretermitting its inquiry and failing to make findings as to whether the termination of the Appellee/Father's parental rights was in the best interests of the Child.
3. Whether the trial court erred in assigning the entirety of the Guardian Ad Litem fee and the court costs to the Appellants/Mother and Stepfather.

         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 proved 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 ...


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