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In re Brenleef

Court of Appeals of Tennessee, Knoxville

August 30, 2019

In Re BRENLEEF.[1]

          Assigned on Briefs July 17, 2019

          Appeal from the Chancery Court for Anderson County No. 16CH8331 M. Nichole Cantrell, Chancellor

         This action involves the termination of a mother's parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of abandonment by her (1) failure to visit; (2) failure to support; and (3) conduct that exhibited a wanton disregard for the child's welfare. The trial court also found that termination was in the best interest of the child. We reverse the trial court on its finding that the mother abandoned the child by failing to remit support. We affirm the trial court on all other rulings.

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

          Paige Coleman, Seymour, Tennessee, for the appellant,

          Olivia F. Amanda Inman Lowe, Knoxville, Tennessee, for the appellees, Louie and Michele B. Julianna L. Mason, Knoxville, Tennessee, guardian ad litem for the minor, Brenlee F.

          John W. McClarty, 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

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         The Child at issue was born out-of-wedlock to Olivia F. ("Mother") in October 2012. The Child's father was later identified as Charles K. In 2014, Mother gave temporary custody of the Child to her mother ("Grandmother"), and a court order was entered evidencing the same. In 2015, Grandmother relinquished custody to Louie and Michele B. ("Petitioners"), who later obtained an order of custody from the Juvenile Court on June 28, 2015. The custody order provided, in pertinent part, as follows:

That visitation between [the Child] and [Mother] shall be strictly supervised by [Petitioners] at dates and times they designate.
That any party seeking to modify this order shall file a petition with this Court.

         Meanwhile, Mother engaged in a lifestyle of drug abuse and was charged with numerous offenses, including shoplifting, theft of a motor vehicle, theft of property, criminal trespassing, forgery, possession of drug paraphernalia, probation violations, contempt of court, and failure to appear. These charges led to multiple periods of her incarceration, the most recent of which occurred from March 30, 2016, through April 25, 2016, and again from August 22, 2016, through September 19, 2016. Petitioners filed a petition to terminate Mother's parental rights on September 19, 2016.[2] Mother executed a voluntary surrender of her parental rights but then rescinded her intent to surrender.

         The case proceeded to a hearing on the termination petition on July 20, 2018. Mother provided that she was arrested again in March 2018 and charged with manufacturing, delivery, and resale of a Schedule II drug, simple possession, and failure to appear. She was incarcerated on April 30th and was transported to the hearing from the Anderson County Detention Facility. She claimed she has abstained from drugs since April 30th and had been accepted into a rehabilitation program. She planned to enroll in the program upon her release and stay for at least six months to two years.

         Mother agreed that she had not remitted child support to Petitioners during the pertinent time period. She noted that her tax refunds were withheld from her in payment of child support and that she made purge payments, one in June 2016, for back child support. She agreed that she generally maintained employment when not incarcerated and that she gave Grandmother approximately $40 per week for the Child when she was not incarcerated. She explained that she contacted family members in an attempt to acquire Petitioners' phone number but that she was denied information. She acknowledged that she knew where Petitioners lived but did not mail them her support payments. She stated that she had always paid the support to Grandmother and did not realize she was supposed to remit payment through the child support office.

         Mother testified that she had not seen the Child since 2015. She provided that per the court order transferring custody, her visitation was at Petitioners' discretion. She claimed that her requests for visitation were denied. She admitted that she did not file a petition with the court to secure her visitation rights.

         Mother stated that when Grandmother had custody of the Child, she lived with them until she was removed from the home due to her substance abuse. She claimed that she enjoyed an excellent relationship with the Child prior to her substance abuse issues. She did not want to sever her relationship with the Child because she believed that she could be a positive influence in her life if given the chance.

         Michelle B. testified that the Child was doing well in their home and had adjusted well after the initial transition into the home. She explained that the Child expressed fear when she was left with a sitter or other family members in her stead. She took the Child to counseling shortly after they obtained custody and stated that the Child still participates in play therapy when their schedule permits.

         Michelle B. testified that they had not received any child support payments from Mother or any purge payments from the child support office. She admitted that Grandmother had offered them money but that they declined her offers of payment. She stated that Grandmother never advised them that the money was from Mother for the Child. She also acknowledged that they had declined two requests from Grandmother to schedule a visitation with Mother. She stated that the first request occurred in either 2015 or the beginning of 2016. She explained that they denied the request because they had just received custody and wanted to allow the Child time to adjust in her new home. She stated that they received a second request in February 2016 when Mother had a short period of release between her incarceration and entry into a rehabilitation program. They denied that request because they did not believe it was in the Child's best interest due to Mother's limited availability between periods of confinement and absence of proof that Mother was stable enough to refrain from substance abuse. She agreed that they received two letters from Mother for the Child and one gift for the Child in 2015. She also admitted that they received one request for visitation directly from Mother via Facebook messenger in July 2016. She stated that they did not receive the request in a timely manner to permit the visitation as requested. She denied ever directing others not to provide Mother with their telephone number.

         Louie B. confirmed his wife's testimony and described a loving relationship between himself and the Child.

         Following the hearing, the trial court granted the termination petition, finding that Mother had abandoned the Child by her (1) failure to visit; (2) failure to support; and (3) conduct that exhibited a wanton disregard for the Child's welfare. The court also found that termination was in the best interest of the Child. This timely appeal followed.

         II.ISS ...


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