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In re Channing M.

Court of Appeals of Tennessee, Knoxville

October 23, 2019

IN RE CHANNING M.

          Assigned on Briefs October 1, 2019

          Appeal from the Chancery Court for Hawkins County No. 2017-AD-6 Douglas T. Jenkins, Chancellor

         This is a termination of parental rights case. After the death of the mother, petitioner- the child's maternal grandmother-sought to terminate the father's parental rights on four grounds: abandonment by failure to support the child; abandonment by failure to support the mother; abandonment by failure to visit the child; and failure to manifest ability to take custody of the child. The trial court found that clear and convincing evidence existed to terminate father's parental rights only on the ground of abandonment by failure to support the child. The trial court further found that termination was in the best interests of the child. We affirm.

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

          Gerald T. Eidson, Rogersville, Tennessee, for the appellant, William S.

          Tammy M., Rogersville, Tennessee, Pro se.[1]

          Arnold B. Goldin, 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

          ARNOLD B. GOLDIN, JUDGE.

         I. Background and Procedural History

         The child at issue in this case, C.M. (the "Child"), was born February 2013 to Jessie M. ("Mother") and William S. ("Father").[2] For the first two years of the Child's life, neither Mother nor Father knew with certainty the paternity of the Child; however, when the Child was about two years old, Mother began reaching out to Father about the possibility of his being the Child's father. Father testified that it was during this time- either late 2015 or early 2016- when he saw a picture of the Child, noticed the resemblances between the two of them, and began to believe that the Child was his son. Around the same time, Mother also approached Father's mother, Vonda S. ("Ms. S."), in order to establish a relationship between her and the Child. Mother took the Child to visit Ms. S. two to three times a week, and, as a result, Father also began to see the Child more often. According to Father, "we just worked our way into it slowly."

         Mother, however, was murdered on August 12, 2016. Upon investigation, Ms. S. became a suspect and was ultimately tried and convicted of Mother's murder.[3]Immediately following Mother's death, Tammy M., the Child's maternal grandmother ("Grandmother"), took custody of the Child.[4] On August 17, 2016, Father filed in the Greene County Juvenile Court (the "juvenile court") a petition seeking legitimation and custody of the Child. The juvenile court entered an order on December 7, 2016 in which it found that, based on the results of paternity testing, Father is the biological father of the Child. However, pending a further investigation into the facts, the juvenile court ordered that Grandmother would retain temporary custody of the Child, reserving the matters of visitation and custody for December 20, 2016. At the December 20, 2016 hearing, the juvenile court entered an order with the following conditions regarding such matters:

[T]hat upon the selection of a neutral independent supervisor, [Father] may begin supervised visitation with [the Child], to occur at a public place that the parties can agree upon. Only the supervisor and [Father] will be in attendance at these visits.
[T]hat [Father] is authorized to communicate with [the Child's] therapist to arrange for therapeutic counseling with [the Child] in an effort to better learn about [the Child's] needs and to assist [the Child] in coping with the loss of his Mother.

         On March 1, 2017, Grandmother, as the prospective adoptive parent of the Child, filed a petition in the Hawkins County Chancery Court (the "trial court"), seeking an order terminating Father's parental rights. In the petition, Grandmother alleged four grounds for termination: (1) abandonment by willful failure to support the Child; (2) abandonment by failure to visit the Child; (3) failure to manifest the ability to take custody of the Child; and (4) abandonment by failure to support Mother. A hearing on Grandmother's petition was held on October 9, 2018, and, on February 20, 2019, the trial court entered an order terminating Father's parental rights. The trial court found that Grandmother did not present clear and convincing evidence as to the grounds of abandonment by failure to visit, abandonment by failure to support Mother, and failure to manifest ability to take custody; however, because Father admitted that he paid no child support during the relevant statutory period despite his ability to do so, the trial court found clear and convincing evidence that he willfully failed to support the Child. The trial court subsequently determined that termination was in the Child's best interests and terminated Father's parental rights. Father timely appealed.

         II. Issue Presented

         Father raises only one issue on appeal: whether the trial court erred in finding that it was in the Child's best interest to terminate his parental rights.

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id.

         In view of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Grounds for Termination of Parental Rights

         On appeal, Father challenges only the trial court's finding that termination is in the Child's best interest; however, this Court must review the trial court's finding that clear and convincing evidence exists to support the alleged ground for termination, as well. As the Tennessee Supreme Court has held previously, "in an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal." In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (citing In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010)).

         Termination of a parent's rights may be initiated based on "[a]bandonment by the parent or guardian, as defined in § 36-1-102 . . . ." Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 outlines several definitions of "abandonment." As is relevant to this ground, the statute provides that "abandonment" means:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent . . . of the child who is the subject of the petition for termination of parental rights or adoption, that the parent . . . [has] willfully failed to support or [has] willfully failed to make reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i).[5] Here, Grandmother filed the termination petition on March 1, 2017. Accordingly, we look from November 1, 2016 to February 28, 2017 as the relevant statutory period.

         Parents who are eighteen years of age or older are presumed to be aware of their duty to support their children. See Tenn. Code Ann. § 36-1-102(1)(H). Moreover, "the obligation to pay support exists even in the absence of a court order to do so." In re Michaela V., No. E2013-00500-COA-R3-PT, 2013 WL 6096367, at *8 (Tenn. Ct. App. Nov. 19, 2013). For purposes of this ground, Tennessee Code Annotated section 36-1-102(1)(D) defines "willfully failed to support" or "willfully failed to make reasonable payments toward such child's support" as "the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child." Tenn. Code Ann. § 36-1-102(1)(D).[6] The statute defines "token support" as support that, "under the circumstances of the individual case, is insignificant given the parent's means[.]" Tenn. Code Ann. § 36-1-102(1)(B). "Whether a parent failed to visit or support a child is a question of fact. Whether a parent's failure to visit or support constitutes willful abandonment, however, is a question of law." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. Ct. App. 2013).

         In its order terminating Father's parental rights, the trial court found, in relevant part, the following:

I very much believe what this father told me on the witness stand, that he was estranged from the mother for a period of time after the birth of the child but that then the mother approached his own mother and they started up a relationship, and he either saw a picture of the child or the child, and the Court will acknowledge, based on what it's seen, that the child does bear a somewhat striking resemblance to him, and so, common-sensically [sic], the Court can see how that would make him think he was the father.
But when he started thinking he was the father, he still did very little, I think, beyond - not much beyond token support for that child. But even if he had paid guideline support, it would be irrelevant, because the period of time that we're looking at is November the 1st, 2016 to March 1st, 2017, and we all know that he paid no support during that period of time.
He was, as Ms. Fairchild pointed out, working, making pretty good money. His girlfriend was working, making even more money than he was. He didn't say at any time during this trial that he couldn't have paid support. And he admitted that during the four months that's relevant he paid none.

         The trial court's findings are supported by the record-most notably, Father's admission that he did not pay any support for the Child from November 1, 2016 to February 28, 2017. When asked to provide proof of each and every child support payment that he had made, Father responded that he "does not currently pay child support" but that he had helped Mother out with certain payments, such as necessary household items, vehicle maintenance, and transportation. Other than Father's own testimony, however, there is scant evidence to support his claim. For example, there is a receipt from Boulevard Motors with a handwritten note from Mother indicating that Father "gave me $100.00 [to] help with her car." The receipt, however, also indicates that the payment was made on June 17, 2016, which is outside the relevant statutory period. Accordingly, Father's $100.00 payment to Mother for help with her car is irrelevant for our review. Additionally, a set of receipts from Walmart includes a handwritten note from Mother indicating that Father made an additional $100.00 payment to Mother because the Child was going to Dollywood. However, the only date provided indicates that such payment was made on ...


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