In Re Layton W. ( 2020 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 2, 2020 Session
IN RE LAYTON W.
Appeal from the Circuit Court for Franklin County
No. 2018-CV-207 Justin C. Angel, Judge
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No. M2020-00197-COA-R3-PT
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The trial court terminated a father’s parental rights on the grounds of abandonment by
failure to visit and abandonment by failure to support his child. The father stipulated to
certain grounds for termination but appeals the trial court’s conclusion that terminating his
parental rights is in the best interests of the child. Because the trial court’s findings as to
the grounds for termination do not relate to the father’s conduct during the relevant time
period prescribed by statute and the trial court’s final order fails to show that the trial court
considered the best interests factors set forth in Tennessee Code Annotated section 36-1-
113, we vacate the trial court’s judgment and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;
Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and
THOMAS R. FRIERSON, II, JJ., joined.
Michael D. Hall, Winchester, Tennessee, for the appellant, Corey W.
Bradley D. Sherman, Winchester, Tennessee, for the appellees, Brittany D. and Josh D.1
OPINION
Layton W. (the “Child”) was born to Corey W. (“Father”) and Brittany D.
(“Mother”) on May 20, 2015. Father and Mother were never married, and they separated
after living together with the Child for a short time. In January 2016, Father filed a petition
for joint custody of the Child in the Franklin County Juvenile Court (the “juvenile court”),
1
In cases involving minor children, it is this Court’s policy to redact names in order to protect the
children’s identity.
alleging that his relationship with Mother had ended because she disliked having to include
the Child’s half-siblings in their family life. For several months, the parties operated under
an agreed parenting plan order entered by the juvenile court, which allowed Father 144
days per year with the Child.2 On or about November 17, 2017, Father engaged in a series
of crimes in Moore County. That same date, Mother petitioned the juvenile court to
suspend Father’s visitation, and the juvenile court granted Mother temporary custody of
the Child and suspended Father’s visitation until further order. Father was subsequently
sentenced to twelve years with the Tennessee Department of Correction after pleading
guilty to three counts of felony theft.
On August 6, 2018, Mother and Josh D. (“Stepfather”) (together, “Petitioners”) filed
a joint petition in the Franklin County Circuit Court (the “trial court”) for termination of
Father’s parental rights and for Stepfather to adopt the Child.3 As grounds for termination,
Petitioners alleged that Father had abandoned the Child because of his lengthy prison
sentence and his failure to make child support payments. From prison, Father timely filed
a hand-written response opposing the petition. The trial court appointed a guardian ad
litem for the Child and counsel for Father.
The trial court heard the case on July 16, 2019. Father attended the hearing in
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person and stipulated to clear and convincing evidence of two grounds for termination of
his parental rights: (1) abandonment based on his twelve-year conviction and (2)
abandonment by wanton disregard based on his criminal history. Petitioners introduced
into evidence the judgments from Moore County ordering Father to serve twelve years in
confinement and judgments from other unrelated Franklin County cases as proof of
Father’s pervasive criminal history. Father affirmed before the trial court that he had
understood, discussed with counsel, and agreed to the stipulation as to grounds for
termination. The parties then presented witnesses as to the issue of whether terminating
Father’s parental rights was in the best interests of the Child. After closing arguments, the
trial court took the matter under advisement.
On January 6, 2020, the trial court entered a four-page Final Order terminating
Father’s parental rights. The trial court found that Father had abandoned the Child by
failing “to have any more than token visitation with the Child” and by failing to provide
support for the Child for at least four months prior to the filing of the petition, constituting
grounds to terminate Father’s parental rights under Tennessee Code Annotated section 36-
1-113. The trial court observed that Father had stipulated to these two grounds and to the
ground of abandonment with wanton disregard due to his twelve-year prison sentence. The
trial court concluded that there was clear and convincing proof of grounds for terminating
2
Under the agreed parenting plan, Father had the Child every week from Wednesday at 5:00 p.m.
to Saturday at 5:00 p.m.
3
Mother and Stepfather had married three months earlier on May 5, 2018.
4
Father was transported from the South Central Correctional Facility in Wayne County to the
Franklin County Jail to attend the hearing.
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Father’s parental rights and that it was in the Child’s best interests to terminate Father’s
parental rights, noting the care and support provided to the Child by Petitioners and their
families. As to the best interests analysis, the trial court stated only that it had “evaluated,
weighed, and applied all of the factors set forth in TCA: 36-6-106, and ha[d] found that
every single relevant factor favors the Mother and Stepfather.”
The sole issue raised by Father in this appeal is whether the trial court erred in
concluding that terminating his parental rights was in the best interests of the Child.
Petitioners present no additional issues for review.
In order to terminate parental rights, a trial court must find by clear and convincing
evidence that: (1) the statutory grounds for termination of parental and guardianship rights
have been established, and (2) termination is in the best interests of the child. See Tenn.
Code Ann. § 36-1-113(c). Although Father does not challenge the statutory grounds for
termination relied upon by the trial court, this Court “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). Father’s stipulation to certain
grounds for termination of his parental rights does not discharge this Court’s obligation to
review those grounds. “[A] trial court may not rely on such a stipulation because ‘the party
seeking termination of parental rights is not relieved of its statutory burden of proving by
clear and convincing evidence both the ground for termination and that termination is in
the child’s best interest simply because a parent does not oppose the termination.’” In re
Dakota M., No. E2017-01855-COA-R3-PT, 2018 WL 3022682, at *5 (Tenn. Ct. App. June
18, 2018) (quoting In re Brianna T., No. E2017-01130-COA-R3-PT, 2017 WL 6550852,
at *3 (Tenn. Ct. App. Dec. 22, 2017). Moreover, whether a statutory ground for termination
has been proven by clear and convincing evidence is a question of law, and “questions of
law are not subject to stipulation by the parties of a lawsuit and . . . a stipulation purporting
to state a proposition of law is a nullity.” Mast Advert. & Pub., Inc. v. Moyers, 865 S.W.2d
900, 902 (Tenn. 1993). In addition to accepting Father’s stipulations as to grounds for
termination, the trial court heard proof put on by Petitioners relative to those grounds. We
now review whether the proof presented constitutes clear and convincing evidence of each
ground for termination listed in the trial court’s Final Order.
Grounds for Termination
Citing to Tennessee Code Annotated section 36-1-113, the trial court found that
Father’s parental rights could be terminated because Father had (1) “abandoned the Child
and . . . failed to have any more than token visitation with the Child for at least four months
prior to the filing of this Petition to Terminate Parental Rights” and (2) “failed to provide
support for the Child for at least four months prior to the filing of this Petition to Terminate
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Parental Rights.”5
Section 36-1-113(g) lists abandonment, as defined in Tennessee Code Annotated
section 36-1-102, as a ground for terminating parental rights. Tenn. Code Ann. § 36-1-
113(g)(1) (2017). Section 36-1-102 provides that abandonment occurs, among other
instances, when
A parent or guardian is incarcerated at the time of the institution of an action
or proceeding to declare a child to be an abandoned child, or the parent or
guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and
either has willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support of the child
for four (4) consecutive months immediately preceding such parent’s or
guardian’s incarceration, or the parent or guardian has engaged in conduct
prior to incarceration that exhibits a wanton disregard for the welfare of the
child [.]
Id. § 36-1-102(1)(A)(iv) (emphasis added).6 Thus, the relevant four-month period for
proving abandonment by a parent incarcerated at the time of the filing of a petition seeking
termination of his or her parental rights is the “four (4) consecutive months immediately
preceding such parent’s or guardian’s incarceration.” Id.; see also In re Navada N., 498
S.W.3d 579, 599 (Tenn. Ct. App. 2016); In re Audrey S., 182 S.W.3d 838, 865–66 (Tenn.
Ct. App. 2005).
Here, there is no dispute that Father was incarcerated beginning in November 2017
and during the entire four-month period preceding the filing of the petition to terminate his
parental rights. The relevant period for proving Father’s abandonment is, therefore, the
four months preceding his arrest in November 2017. The trial court’s findings with respect
to abandonment by failure to visit and by failure to provide support to the Child are specific
to “at least four months prior to the filing of this Petition to Terminate Parental Rights.”
The trial court’s order states no findings with respect to abandonment during the relevant
period—the four months preceding Father’s incarceration in November 2017. Moreover,
we note that in their petition, Petitioners alleged only that Father “completely abandoned
his child as he is currently incarcerated for a time to be served of at least eight years” and
“is in arrearage of child support payments . . . and provides no financial and/or emotional
5
The trial court’s order mentions that “Father stipulated . . . that the Father abandoned the child
with wanton disregard due to his 12 year prison sentence and extensive criminal history,” but does not
conclude that Father’s parental rights could be terminated on this ground. As we have stated, the parties
may not stipulate—and the trial court may not rely solely on a stipulation—that a ground for termination
has been proven. In re Dakota M., 2018 WL 3022682, at *5.
6
This the text of the version of the statute applicable at the time the petition for terminating Father’s
parental rights was filed. The statute has been subsequently amended.
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support for the child.” (Emphasis added). Petitioners made no allegations concerning
Father’s conduct during the four months preceding his incarceration. Because the trial
court’s findings as to grounds for termination of Father’s parental rights did not relate to
Father’s conduct during the relevant four-month period prescribed by statute, we vacate
the trial court’s determination as to these grounds and remand the case to the trial court
with instructions to address the relevant time period as applicable to the facts here.
Best Interests of the Child
Father argues in this appeal that the trial court erred in failing to provide any analysis
and to mention any specific proof presented at the termination hearing with respect to the
Child’s best interests. Father also contends that terminating his parental rights will sever
the Child’s family relationships on the paternal side and that this case does not present a
situation where Father has never successfully performed parenting functions.
In parental termination cases, a trial court’s final order must state specific findings
of fact and conclusions of law. Tenn. Code Ann. § 36-1-113(k); In re Angela E., 303
S.W.3d 240, 255 (Tenn. 2010) (holding that this statute “clearly and unequivocally requires
the trial court to make the statutorily required findings and conclusions”). This Court “has
routinely remanded contested termination cases to the trial court for failure to make
findings of fact and/or conclusions of law, whether related to the grounds for termination
or the child’s best interests.” Id. at 251; see also In re B.B., No. M2016-00953-COA-R3-
PT, 2017 WL 782721, at *5 (Tenn. Ct. App. Feb. 28, 2017) (“[T]he requirements of Tenn.
Code Ann. § 36-1-113(k) also apply to the best interest determination.”). The legislature
has codified the factors to be considered to determine a child’s best interests in termination
cases under Tennessee Code Annotated section 36-1-113(i). In re Marr, 194 S.W.3d 490,
499 (Tenn. Ct. App. 2005). The legislature has also codified “different sets of factors to
guide the courts’ consideration of the child’s best interests in other contexts.” Id. at 499
n.18 (citing Tenn. Code Ann. §§ 36-6-106(a) for divorce proceedings, -108(c) for parental
relocation, -307 for grandparent visitation, and -404(b) for parenting plans).
The trial court’s order does not reflect that the trial court considered the appropriate
best interests factors for termination of parental rights set forth in section 36-1-113(i).
Rather, the order provides, in relevant part:
3. Based upon all the proof in the record, provided at the hearing,
and the stipulation of Counsel as to the grounds, the Court finds by clear and
convincing evidence that it is in the Child’s best interest to terminate the
Father’s parental rights and grant the adoption in favor of the [Petitioners].
4. The Court has evaluated, weighed, and applied all of the factors
set forth in TCA: 36-6-106, and has found that every single relevant factor
favors the [Petitioners].
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The trial court was clear in stating that it considered all the factors listed under Tennessee
Code Annotated section 36-6-106. Section 36-6-106 addresses factors that a trial court
must consider “[i]n a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a minor child.”
Id. § 36-6-106(a) (emphasis added); see also In re Marr, 194 S.W.3d at 499 n.18. Although
the determination a trial court makes under section 36-6-106 also hinges “upon the best
interest of the child,” the best interests factors the trial court must consider in a termination
proceeding are set forth in section 36-1-113(i). Because the trial court’s conclusions as to
the Child’s best interests do not satisfy the analysis mandated by statute, we vacate those
conclusions and remand the case to the trial court with instructions to address the pertinent
best interests factors as they apply to the facts of this case.
CONCLUSION
The judgment of the Franklin County Circuit Court is hereby vacated and remanded.
Costs of this appeal shall be taxed to the Appellees, Brittany D. and Josh D., for which
execution may issue if necessary.
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KRISTI M. DAVIS, JUDGE
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