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In re Kingston A. B.

Court of Appeals of Tennessee, Nashville

August 21, 2019

IN RE KINGSTON A. B.

          Session August 13, 2019

          Appeal from the Circuit Court for Montgomery County No. CC17-CV-1496 Ross H. Hicks, Judge

         Father and Step-Mother filed a petition to terminate Mother's parental rights on the grounds of willful failure to visit and support. The trial court denied termination based upon willful failure to visit, but found sufficient evidence in favor of willful failure to support. The trial court, however, found that termination was not in the child's best interest and therefore denied the petition to terminate Mother's parental rights. Because we conclude that clear and convincing evidence does not support the ground of willful failure to support, we reverse the trial court's finding of a ground to support termination. As such, we affirm the trial court's denial of the termination petition.

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

          Christopher J. Pittman and Hollie L. Smith, Clarksville, Tennessee, for the appellants, Tyler E. B., and Shelby L. B.

          Erin S. Poland, Clarksville, Tennessee, for the appellee, Kaitlin A. V.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin, and Carma Dennis McGee, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         I. Facts and Procedural History

         Appellee Kaitlin A.V. ("Mother") gave birth to the child, Kingston A.B., in February 2013 when she was seventeen years old.[1] Appellant Tyler E.B. ("Father") was eventually determined to be the father of the child pursuant to court-ordered DNA testing.[2] At the time of the birth, Father was approximately twenty-six years old. Mother cared for the child exclusively for the first two years of his life; however, Mother was arrested in January 2015 for an outstanding criminal matter. On January 29, 2015, the Juvenile Court of Montgomery County ("the juvenile court") entered an order granting Father's motion for ex parte emergency custody. The order gave Father sole custody of the child until further orders of the court and suspended Father's child support obligation. Mother was not granted any visitation in this order. On February 5, 2015, the juvenile court extended Father's sole custody, but noted that Mother could file a motion seeking review of the order granting custody.

         At some point, Mother filed a motion to dismiss the ex parte custody order. After an evidentiary hearing, the juvenile court entered an order on April 29, 2015, denying Mother's motion, but granting Mother supervised visitation for several hours every other weekend. The court noted that supervision was necessary due to Mother's long-term drug issues. The juvenile court also ordered both parents to participate in hair follicle drug screenings.

         Thereafter, Father filed a motion to suspend Mother's visitation. Mother did not appear at the hearing on the motion. As such, on or about December 22, 2016, the juvenile court granted the motion and suspended Mother's visitation. The order noted, however, that Mother's parents could continue to visit at Father's discretion. The juvenile court also noted that Father could allow telephonic visitation with Mother. On or about March 6, 2017, the juvenile court entered a final order adopting Father's proposed parenting plan and stating that its previous order suspending Mother's visitation "is deemed to be a final [o]rder." Under this order, Mother had no visitation with the child, but Mother was ordered to pay $296.00 per month in child support.

         In the meantime, Father married Shelby L.B. ("Step-Mother") in October 2015.[3]On July 21, 2017, Father and Step-Mother (together, "Petitioners") filed a petition for termination of Mother's parental rights in the Montgomery County Circuit Court ("the trial court"). The petition alleged that Mother had abandoned the child by willfully failing to visit or support the child "for a period of four or more consecutive months." The petition further stated that Mother was currently incarcerated. Mother filed two handwritten responses to the petition in August 2017, seeking appointment of counsel and denial of the petition. Mother was subsequently appointed counsel, and the child was appointed a guardian ad litem. Mother, by and through her counsel, thereafter filed a formal answer to the petition on November 28, 2017. The trial judge entered an order of recusal on January 18, 2018, and the case was transferred to the Honorable Ross H. Hicks.

         A hearing was eventually held on May 29, 2018. Father and Step-Mother testified that Mother did not visit or support the child in the four months prior to the termination proceeding. They also testified that due to behavioral issues affecting the child following contact with Mother, Father exercised his discretion to prohibit phone contact between Mother and the child. Both Father and Step-Mother admitted that the child had a close and loving relationship with his maternal grandparents and Mother's extended family and that the child would benefit from maintaining that relationship. Mother and Step-Father testified, however, that Mother's relationship with the child was strained due to her drug use and incarceration. Step-Mother noted that the child calls Mother "Mommy," while he calls Step-Mother "Mom." According to both Father and Step-Mother, the child is happy, healthy, and well-adjusted in their care. In contrast, they testified that Mother's involvement with the child results in negative effects on the child's emotional health and behavior for up to a week after contact.

         Mother testified that she has had issues with illegal drug use since her teens, although she testified that she managed to stay clean during her pregnancy. Following the birth of the child, Mother and the child lived with maternal grandmother. Father only began paying child support after a court-ordered DNA test was performed. Mother testified that she was first incarcerated on January 21, 2015, and released on probation on February 2, 2015. Mother thereafter obtained employment and worked in a reasonably consistent manner, though she made no effort to pay child support. Mother was also able to exercise supervised visitation following her release, but the visitation was eventually terminated because Mother returned to illegal drug use.[4] Eventually, Mother returned to jail on March 16, 2017, due to a violation of probation related to her refusal to meet with her probation officer. Mother remained in jail for a short period of time before she was released to a rehabilitation center on April 14, 2017. Mother only stayed at this rehabilitation center for approximately three weeks before voluntarily leaving on May 9, 2017.Mother was thereafter in the community for a period of approximately two weeks before she turned herself in to jail on or about May 25, 2017. Mother was then required to serve approximately three-and-one-half months in jail. She was released to an inpatient rehabilitation facility, Grace Recovery Home, on September 8, 2018. Mother remained in this recovery home at the time of trial but had been able to obtain gainful employment as of late October 2017. Mother did not begin paying child support until January 2018. According to Mother, she has maintained her sobriety by the time of trial for over a year and was scheduled to graduate from Grace Recovery Home in September 2018.

         At the conclusion of the hearing, the trial court requested that both parties and the guardian ad litem present proposed findings of fact and conclusions of law. The trial court thereafter entered a written order denying the termination petition on September 10, 2018. Therein, the trial court found that Petitioners had proven the ground of willful failure to support because "Mother obtained a job while she was in the inpatient rehabilitation facility and was capable of paying child support but did not." The trial court denied termination on the ground of failure to visit because Mother had attempted to reinstate visitation. The trial court next considered the best interest factors, but ultimately concluded that the child's best interest was not furthered by terminating his relationship with Mother and Mother's extended family. Petitioners filed a motion to alter or amend the trial court's taxation of costs, which was denied with additional clarification. Petitioners filed a timely notice of appeal.

         II. Issues Presented

         Each party raises different issues in this case. As we perceive it, the ...


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