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In re Alexis S.

Court of Appeals of Tennessee, Knoxville

October 29, 2019

IN RE ALEXIS S. [1]

          Session July 17, 2019

          Appeal from the Circuit Court for Hamblen County No. 17-AD-005 Alex E. Pearson, Judge

         This is an appeal from the trial court's termination of a mother's parental rights and denial of the maternal grandmother's petition for grandparent visitation. The court terminated the mother's rights on the grounds that she abandoned the child by willfully failing to visit and support the child, and failed to manifest an ability or willingness to assume personal custody of the child. The court also found that termination of the mother's rights was in the child's best interest. The court awarded guardianship of the child to her paternal grandparents and denied the maternal grandmother's intervening petition for visitation, finding that the risk of harm in permitting visitation was greater than the risk of harm in denying it. The mother appeals the termination of her parental rights, and the grandmother appeals the denial of her petition for visitation. Because the trial court failed to make sufficient findings as mandated by Tennessee Code Annotated § 36-1-113(k), we reverse the trial court's determination that the ground of abandonment by willful failure to support the child was established and remand the issue for the trial court to make the requisite findings and to enter judgment accordingly. We reverse the court's determination that the other two grounds for termination were proven because the record fails to establish either ground by clear and convincing evidence. Because no ground for termination has been proven, we also reverse the court's determination regarding the child's best interests. Because the court terminated the father's parental rights, we affirm the court's appointment of the paternal grandmother and her husband as the child's guardians, subject to the mother's rights, which have not been terminated. We also affirm the denial of the maternal grandmother's petition for visitation. Therefore, the judgment of the trial court is affirmed in part, reversed in part, the judgment terminating

         Mother's parental rights is vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part, Reversed in part, Vacated in part and Remanded

          Aaron Chapman, Morristown, Tennessee, for the appellant, Amanda P.

          Crystal Goan Jessee, Greeneville, Tennessee, for the appellees, Bill K. and Donna K.

          C. Scott Justice, Jefferson, Tennessee, for the appellee, Vanessa T.

          Michelle G. Green, Rogersville, Tennessee, Guardian ad Litem, for the minor child, Alexis S.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         In December 2007, Alexis S. ("the Child") was born to Amanda P. ("Mother") and Doug S. ("Father") in Jefferson County, Tennessee. In December 2009, Mother and Father voluntarily gave custody of the Child to her maternal grandmother, Vanessa T. Mother continued to live in East Tennessee until she met her husband, Caleb P., in 2014. Mother spent the next two years traveling with Caleb while he worked as a truck driver.

         In September 2014, Mother agreed to a new custody order that split custody of the Child between Ms. T. and the Child's paternal grandmother, Donna K. Under the new order, Ms. T. had custody of the Child during the summer and on school holidays, and Ms. K. had custody of the Child during the school year. Ms. T. and Ms. K. successfully maintained this arrangement until August 2016, when Ms. K. filed a petition in the Hamblen County Juvenile Court to terminate or severely restrict Ms. T.'s custody. The petition alleged, inter alia, that Ms. T. smoked marijuana in front of the Child. Ms. T. later filed a competing petition to terminate or restrict Ms. K.'s custody, alleging that Ms. K. hit the Child.

         Meanwhile, Mother became pregnant and moved in with Caleb P.'s family in Florida. Mother lived in Florida until she and Caleb P. moved back to Tennessee with their new baby in April or May 2017. The couple lived with Ms. T. until October 2017, when they moved into a trailer home nearby. Although Mother had no court-ordered visitation of her own, she enjoyed informal visitation with the Child when she was with Ms. T.

         In November 2017, Mother filed a motion in the juvenile court matter to regain custody of the Child. Mother argued that returning the Child to her would put an end to the grandmother's protracted litigation and provide the Child with stability. Mother's motion, however, was never adjudicated because Mr. and Ms. K. ("Petitioners") instituted the present action to terminate Mother and Father's parental rights in the Hamblen County Circuit Court on December 13, 2017.[2]

         On the same day, Ms. K. obtained an order of protection against Ms. T., which effectively suspended Ms. T.'s custodial time with the Child. Because Mother's visitation with the Child depended on the Child visiting Ms. T., Mother started going to the Child's school twice a week for lunch.

         In March 2018, Ms. T.'s visitation resumed when the order of protection was dismissed. On May 16, 2018, however, Ms. T. violated the court-ordered residential schedule by picking up the Child from school. The next day, a Hamblen County Deputy Sheriff went with Ms. K. to Mother's house, and Mother denied knowing the location of Ms. T. and the Child. The officer and Ms. K. then went to Ms. T.'s home, but Ms. T. and the Child hid inside with the lights off. Ms. T. returned the Child to Ms. K. the next day. Based on this incident, the trial court issued a no-contact order that prohibited Ms. T. and Mother from contacting the Child.

         In June 2018, Mother filed a motion for visitation that asserted she was wrongfully included in the no-contact order. The trial court, however, denied the motion due to Mother's lack of prior, court-ordered visitation and the pending termination hearing. Around the same time, Ms. T. joined the termination proceedings by filing her own petition to terminate Mother and Father's parental rights and for adoption. Ms. T. also requested grandparent visitation if Petitioners succeeded on their petition.

         On September 20, 2018, a final hearing was held on both termination petitions. The court found that clear and convincing evidence supported the termination of Mother and Father's parental rights.[3] As its ruling pertained to Mother, the trial court found that Petitioners proved two grounds of abandonment based on the fact that Mother made only token visits with the Child in the four months before December 2017, and never provided monetary support, despite having extra money available every month and being capable of working. The court also found that an additional ground had been proven based on Mother's failure to manifest an ability and willingness to assume custody of the Child, her role as a "friend" rather than a parent, and the improvement in the Child's behavior since Mother's visits stopped. It concluded that placing the Child in Mother's custody would pose a risk of substantial harm because Mother, along with Ms. T., had exposed the Child to "maladaptive behaviors." Finally, the trial court found that termination of Mother's parental rights was in the Child's best interest because of the time that had passed since Mother had engaged in anything more than token visits. For these reasons, Mother's parental rights were terminated.

         As for Ms. T.'s request for grandparent visitation, the trial court acknowledged that she had a significant relationship with the Child but found that the Child would suffer less psychological harm from losing the relationship than continuing it. The court relied on the testimony of the Child's therapist, Clifford Miller, who opposed visitation "given all the psychological harm that has occurred to [the Child]" when she was with Ms. T.

         On January 22, 2019, the trial court entered a final judgment, terminating Mother's parental rights and placing "full guardianship" of the Child with Mr. and Ms. K. This appeal followed.

         Mother raises five issues on appeal:

(1) Whether the trial court erred in relying on statements from Mother's discovery deposition;
(2) Whether the trial court erred in finding that Mother willfully abandoned the Child by engaging in only token visitation;
(3) Whether the trial court erred in finding that Mother willfully abandoned the Child by willfully failing to support the Child or make reasonable payments to support the Child;
(4) Whether the trial court erred in finding that Mother failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the Child, and placing the child in Mother's legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the Child; and
(5) Whether the trial court erred in finding by clear and convincing evidence that the best interests of the Child required termination of parental rights with respect to Mother.

         In addition, Ms. T. raises two issues on appeal: (1) whether the trial court erred in denying Ms. T. grandparent visitation; and (2) whether the trial court erred by failing to make findings of fact and conclusions of law regarding guardianship.

         Standard of Review

         Termination proceedings are tried to the court without a jury. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113). "To terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child's best interest." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Furthermore, in termination proceedings, the trial court must make "specific findings of fact and conclusions of law." Tenn. Code Ann. § 36-1-113(k).

         We review the trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). In re Bernard T., 319 S.W.3d at 596 (citing In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)). Under Rule 13(d), we review the trial court's findings of fact de novo on the record, and we will accredit the findings unless the evidence preponderates otherwise. Id. (citing In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007)). However, the heightened burden of proof in termination proceedings requires this court to make its own determination "as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights." In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re Bernard T., 319 S.W.3d at 596-97. A trial court's ruling regarding whether the evidence sufficiently supports termination is a conclusion of law, which we review de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d at 524.

         If the trial court fails to comply with the statutory mandate to make "specific findings of fact and conclusions of law," appellate courts "must remand the case with directions to prepare the required findings of fact and conclusions of law" and to enter judgment accordingly. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); see In re Jaylah W., 486 S.W.3d 537, 555 (Tenn. Ct. App. 2015).

         Analysis

         I. Grounds for Termination

         The trial court found that Petitioners proved three grounds for termination of Mother's parental rights. We shall review each ground separately.

         A. Abandonment: Willful Failure to Support

         Mother contends there is insufficient evidence in the record to support the trial court's finding that she abandoned the Child by willfully failing to contribute toward the support of the Child. More specifically, she contends the only specific finding of fact relied upon by the trial court concerning this ground is not in the record, and it only appears in her discovery deposition, which was not introduced into evidence. Petitioners counter that the error, if any, was harmless because other evidence in the record supports the court's findings on this ground.

         Abandonment is one of the grounds for termination of parental rights. Tenn. Code Ann. § 36-1-113(g)(1). When this petition was filed on December 13, 2017, the statute in effect at that time defined abandonment as the willful failure to visit, to support, or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights. Tenn. Code Ann. § 36-1-102(1)(A)(i) (2010).[4] To prove the ground of abandonment as statutorily defined in 2017, a petitioner was required to "establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Whether a parent failed to support a child is a question of fact and whether a parent's failure to support constitutes willful abandonment is a question of law. Id.

         "Willful failure to support or to make reasonable payments toward support means '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.'" Id. (quoting Tenn. Code Ann. § 36-1-102(1)(D)). Significantly, however, a parent has not abandoned her child when her failure to support is due to circumstances outside her control. See In re Adoption of A.M.H., 215 S.W.3d at 810 (holding that the evidence did not support a finding that the parents "intentionally abandoned" their child).

         The petition for termination of Mother's parental rights was filed on December 13, 2017. Although the petition was later amended, the relevant period for purposes of abandonment is the four-month period immediately preceding the filing of the original petition. See In re Adoption of Angela E., 402 S.W.3d at 640 (citing Tenn. Code Ann. § 36-1-102(1)(A)(i); In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003)). Therefore, the relevant four-month period is August 13, 2017, to December 12, 2017.

         In its October 19, 2018 Memorandum Opinion, which the court incorporated by reference in its Final Judgment, the court set forth its findings of fact concerning each ground for termination. The entirety of the trial court's findings of fact pertinent to the ground of abandonment for willfully failing to support the Child reads as follows:

2. The Court finds by clear and convincing evidence that [Mother] has willfully failed to support the minor child and has willfully failed to make reasonable payments toward the support of the minor child since birth including the last four months before the filing of this petition in December of 2017. The clear testimony from [Mother] establishes that she was and is fully capable of working to help support Alexis but simply has chosen from the time the child was born to not contribute any support for Alexis. [Mother] testified both during trial and at deposition that she was not disabled and was fully capable of working. [Mother] acknowledged that she operates a small business called Pink Zebra but is not really making much money through it. The Court considered the testimony of [Mother] that she bought "some clothes and stuff" for Alexis (Lexi) in conjunction with the rest of her testimony as well as the other proof at trial and finds such testimony unpersuasive. [Mother] acknowledged in her deposition that she had between $80.00 and $100.00 per month in extra money available; however, she chose not to obtain employment outside of the home or provide any support for Alexis.
5. The Court further finds for the same reasons provided in paragraph 2 above that the intervening petitioners have established that [Mother] has willfully failed to make reasonable payments toward the support of the minor child. As discussed above, [Mother] has never paid child support for the minor child and there is no reason as to why she cannot work to provide support.

         (Emphasis added).

         Other than the finding that "[Mother] acknowledged in her deposition that she had between $80.00 and $100.00 per month in extra money available," the trial court made no specific finding of fact that supports the conclusion that Mother "willfully" failed to support the Child. This is significant because Mother's acknowledgment only appears ...


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