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In re Kira D.

Court of Appeals of Tennessee, Knoxville

June 26, 2018

In Re KIRA D., et al.[1]

          October 17, 2017 Session

          Appeal from the Chancery Court for Hawkins County No. 2015-AD-41 Douglas T. Jenkins, Chancellor

         This appeal involves the filing of a termination petition by the mother and stepfather against the father of two minor children. The court denied the termination petition but appointed the stepfather as the permanent guardian of the children. The father appeals. We vacate the order of permanent guardianship.

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

          Amy Kathleen Skelton and Whitney Bailey, Rogersville, Tennessee, for the appellant, Jerry W. D.

          Daniel G. Boyd, Rogersville, Tennessee, for the appellee, Jeremy A. J.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J. and Thomas R. Frierson, II, J., joined.


          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Kira and Keatan D. (collectively "the Children") were born of the marriage between Amanda J. ("Mother") and Jerry D. ("Father") in November 2003 and May 2008, respectively. Mother and Father were divorced by order of the court, entered on July 6, 2013, pursuant to a marital dissolution agreement with an agreed upon parenting plan. Pursuant to the agreement, Mother was identified as the primary residential parent, while Father was awarded reasonable visitation and tasked with remitting child support in the amount of $457 per month.

         Mother married Jeremy J. ("Stepfather") on February 7, 2014. The Children have resided with Mother and Stepfather since that time. Mother was diagnosed with terminal cancer, namely Stage 4 Adenocarcinoma, months later. Thereafter, Mother and Stepfather filed a petition to terminate Father's parental rights on November 30, 2015, alleging abandonment for failure to visit and to support. Father denied the allegations, claiming that he did not pursue visitation in an effort to maximize the Children's time with Mother before her passing. He stated that he remained in contact with them and was available, if needed. He conceded that he failed to remit support during the relevant time period but claimed that he believed the support payments had been deducted from his paycheck. He asserted that he remedied the issue. He sought custody of the Children in light of the severity of Mother's illness.

         The case proceeded to a hearing on December 19, 2016, at which several witnesses testified. Mother confirmed her illness and explained that her remaining time was uncertain. She claimed that Father had not visited the Children or provided child support in the four months preceding the filing of the termination petition, namely July 30 through November 29, 2015. Relative to visitation, she testified that he was entitled to co-parenting time pursuant to the parenting plan. She noted that he agreed to a co-parenting schedule consisting of every other weekend during the school year and every other week during the summer. She asserted that Father never called or attempted to schedule visitation during the relevant time period. She acknowledged that Father may have been present at a wedding on September 5 that the Children attended but claimed that any interaction was not scheduled by him or arranged in advance. She agreed that he also spoke with Kira through text messages. She explained that his communications were vague expressions of love and concern and that he did not even celebrate Kira's birthday with her on November 7. She further claimed that he also had not attended the Children's extracurricular activities or school functions since the time of the divorce. She denied that Father ever advised her that he was not pursuing visitation with the Children in an effort to maximize her time with them before her passing.

         Relative to child support, Mother testified that she did not receive any support payments pursuant to the parenting plan during the relevant time period, whether token or otherwise. She identified his summary of payments through the Child Support Enforcement Services that confirmed her claim. She agreed that he had remitted support in the total amount of approximately $14, 642 from September 30, 2013, through December 5, 2016.

         Mother described a loving relationship between the Children and Stepfather and claimed that he became the father that they needed. He provided for them financially and emotionally, participated in their activities, and took them to and from school. She questioned Father's ability to care for the Children financially and provided that he was simply unable to provide them with the stability they would need once she was no longer living. She agreed that Father was present in the Children's lives since their birth and in the years prior to their divorce. She explained that he served as a father figure prior to the divorce but claimed that he no longer has a relationship with them. She acknowledged that the Children maintained a relationship with Father's stepmother, who visited with the Children approximately once every six months.

         Stepfather testified that he spoke with Father on one occasion during the relevant time period. He explained that he saw him in a parking lot and asked, "Where in the world have you been?" Father told him that he had been working. He stated that Father retrieved the Children the next day and exercised co-parenting time for approximately four hours. He agreed that Father was also present at a wedding the Children attended. He confirmed that Father did not remit child support during the relevant time period.

         Stepfather described a loving relationship between himself and the Children and identified several pictures of him with the girls doing various activities. He claimed that he was willing to provide for them financially and emotionally and to serve as their father. He provided that the Children enjoyed ...

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