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In re Brendan G.

Court of Appeals of Tennessee, Nashville

October 9, 2019

In Re BRENDAN G.[1]

          Assigned on Briefs August 1, 2019

          Appeal from the Chancery Court for Warren County No. 648A Larry B. Stanley, Jr., Chancellor

         This action involves the termination of a father's parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of (1) failure to establish or exercise paternity; (2) severe child abuse; and (3) sentence of imprisonment for severe child abuse. The trial court also found that termination was in the best interest of the child. We affirm the trial court.

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

          Sheila Younglove Miner, McMinnville, Tennessee, for the appellant,

          Daniel D. Nathan A. White, Murfreesboro, Tennessee, for the appellees, Tyler and Tabitha C.

          John W. McClarty, J., delivered the opinion of the Court, in which Richard H. Dinkins and Arnold B. Goldin, J.J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         The Child at issue was born out-of-wedlock to Tabitha C. ("Mother") in September 2012. The Child's father, who was not listed on the birth certificate, was later identified as Daniel D. ("Father"). Father made no claims of paternity and failed to legitimate the Child. The Child has resided with Mother continually since birth.

         Mother married Tyler C. ("Stepfather") on April 8, 2016. Mother and Stepfather (collectively "the Petitioners") filed a petition to terminate Father's parental rights and for Stepfather's adoption of the Child on September 1, 2017. The Petitioners alleged the following statutory grounds supporting the request for termination: willful abandonment and wanton disregard for the Child's welfare prior to incarceration; failure to establish or exercise paternity; severe child abuse committed against another child; and Father's sentence of imprisonment of two years or more for severe child abuse.

         The case proceeded to a hearing on the termination petition on November 15, 2018. Mother testified that she and Father were "together" for a short period of time before she became pregnant with the Child. She claimed that she informed him of the pregnancy and agreed that he attended at least one prenatal visit prior to the Child's birth. She denied ever receiving any financial assistance from him prior to or after the birth. She agreed that his family purchased some items for the Child for Father's use when caring for the Child. She stated that he last visited with the Child at the Child's first birthday party in September 2013. She acknowledged that there were a "few times" that she denied his requests for visitation. She explained that she either did not have the Child at the moment he requested visitation or that his requests were followed by threats when she advised him that the current time would not work with her schedule. She ultimately "blocked" him from her Facebook account due to his threats of harm. She provided that he also dealt drugs, had been convicted of domestic assault against his own mother, and was homeless for a period of time.

         Mother testified that she and Stepfather have been married for two years and have two children of their own. She stated that Stepfather is employed and serves as a great father to their children. She claimed that the Child loves him and views him as his father.

         Stepfather expressed his love and concern for the Child and indicated his desire to adopt him if permitted.[2] He admitted that Father showed some concern for the Child and was present at a few doctor's appointments and paid for some doctor visits. He recalled that Father threatened him and his family on occasion but agreed that Father never actually harmed him. He explained that Mother was concerned about Father's inability to control his anger as evidenced by his domestic assault of the paternal grandmother.

         Stepfather admitted that he also had a criminal history and had been addicted to drugs. He claimed that he has since resolved his legal troubles and completed drug rehabilitation. He stated that he is also currently employed and is able to provide for his children.

         Father testified that he was 17 years old when the Child was born. He agreed that he did not establish his paternity but claimed that he attended and remitted payment for a few doctor appointments. He stated that his mother also hosted a baby shower for Mother and that he and his family provided her with cash on occasion for the Child. He and his family also purchased necessary items for the Child, e.g., diapers, formula, clothing, etc. He claimed that Mother denied his attempt to establish a parenting plan and that she also continually denied his requests for visitation with the Child. He admitted that he never sought visitation through the court system. He expressed love and concern for the Child and stated his intent to serve as the Child's father. He denied ever threatening or harming the Child. He admitted his addiction to drugs but claimed that he has since been rehabilitated.

         Father admitted that he pled guilty to the offense of aggravated child abuse and was currently serving a sentence of eight years for the offense. He agreed that he lived with the child he was alleged to have abused and his mother for approximately four months prior to the abuse. He acknowledged that the child, who was two months old at the time, suffered from a fractured skull and hemorrhaging as a result of the abuse. Despite his plea of guilty, Father denied harming the child. He explained that he pled guilty because he "was bound to end up in prison some other way," either as a result of drugs or another violent crime.

         Crystal W., the paternal grandmother ("Grandmother"), confirmed Father's claim that their attempts to schedule visitation with the Child were denied.[3] She further confirmed that she provided money and other items for the Child. She stated that she last saw the Child in November 2013, despite her repeated requests for visitation. She recalled that when allowed to visit, Father did well with the Child, despite his age and inexperience at the time. She agreed that Father was not "perfect" and acknowledged that he was convicted of domestic assault for actions he committed toward her. She explained that as a result of that conviction, he was not allowed in her house for approximately one year. She stated that she understood Mother's hesitation to allow visitation with Father as a result of his violent tendencies.

         Following the hearing, the trial court denied any claim of willful abandonment, explaining that Father's attempts to visit and support the Child prior to the filing of the termination petition were thwarted by Mother. The court granted the termination petition on the remaining grounds, finding that Father had (1) failed to establish or exercise paternity; (2) had been found guilty of severe child abuse; and (3) had been sentenced to a term of two years or more for his conviction of severe child abuse. The court also found that termination was in the best interest of the Child. This timely appeal followed.

         II. ISSUES

         We consolidate and restate the issues on appeal as follows:

A. Whether clear and convincing evidence supports the court's termination based upon a finding of failure to establish or exercise paternity pursuant to Tennessee Code Annotated section 36-1-113(g)(9).
B. Whether clear and convincing evidence supports the court's termination based upon a finding of severe child abuse pursuant to Tennessee Code ...

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