In Re James H., III ( 2021 )

06/29/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 1, 2021
IN RE JAMES H., III
Appeal from the Chancery Court for Weakley County
No. 23751 W. Michael Maloan, Chancellor
___________________________________
No. W2020-01423-COA-R3-PT
___________________________________
James H., II (“Father”) appeals the termination of his parental rights to the minor child,
James H., III (“the Child”). In April 2017, Ashley P. (“Mother”) and Trinity P.
(“Stepfather”) filed a petition to terminate Father’s parental rights in the Weakley County
Chancery Court (“Trial Court”). Following a trial, the Trial Court terminated Father’s
parental rights on two grounds of abandonment due to Father’s willful failure to visit the
Child and willful failure to support the Child prior to Father’s incarceration. The Trial
Court further found that termination of Father’s parental rights was in the Child’s best
interest. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J. M.S., and ARNOLD B. GOLDIN, J., joined.
Langdon S. Unger, Jr., Martin, Tennessee, for the appellant, James H., II.
Donald Capparella, Kimberly Macdonald, and Patrick Riley, Nashville, Tennessee, and
Kent F. Gearin, Martin, Tennessee, for the appellees, Ashley P. and Trinity P.
OPINION
Background
Mother and Father were married to each other for approximately a year, and the
Child was born in 2006 during the marriage. After Mother and Father divorced in 2007,
Mother was awarded custody of the Child. The Trial Court initially set Father’s child
support at $571 per month in March 2007. The Trial Court subsequently modified Father’s
child support obligation to $446 per month effective in April 2007. During the divorce
proceedings, the Trial Court allowed Father temporary visitation with the Child consistent
with Father’s employment on a riverboat. Due to Father’s employment, he was away from
home for weeks at a time. According to Mother’s testimony during trial, the Trial Court
ordered in January 2009 that her proposed parenting plan would be adopted by the court
but that Father’s temporary visitation would be suspended pending completion of a
psychiatric evaluation to determine whether Father was fit to receive visitation with the
Child. Father was also to complete a parenting class. As stated by Mother, the court order
provided that when Father completed those requirements, he could petition the court to
reinstate his visitation.
Father completed a psychological evaluation that recommended that Father
complete anger management treatment. Mother testified that in February 2009, the Trial
Court ordered Father’s visitation to be supervised by either Mother or the maternal
grandmother “until he could prove that he was taking his med[ication] for no less than a
year and that he completed anger management treatment.” The parties had agreed that
Father could visit with the Child on the weekends he was home from work from noon until
4:00 P.M. According to Mother, Father never filed any pleadings in the courts to modify
this visitation order requiring supervised visitation. Father did not complete anger
management classes prior to his incarceration, but he did complete it in 2017 while
incarcerated.
The child support records demonstrate that Father made no child support payments
after March 2012 until one payment of $5 made in 2015 after his incarceration. Father was
arrested on March 15, 2013 in Kentucky and remained incarcerated at the time of trial in
this matter. Father initially was found guilty of one count of rape following a jury trial but
that conviction was vacated by an appellate court. On retrial, Father was found guilty of
one count of first-degree rape with serious physical injury and two additional counts of
first-degree rape. As a result, Father was sentenced to life imprisonment on the count of
first-degree rape with serious physical injury and twenty years each on the two additional
counts of first-degree rape. The criminal court ordered these sentences to be served
concurrently.
Mother and Stepfather married in September 2016. At the time of trial, Mother and
Stepfather had been married for nearly four years and had been in a romantic relationship
for more than ten years. They had resided together since late 2011 and had a child together
who was born in 2012. Mother and Stepfather (collectively, “Petitioners”) filed a petition
to terminate Father’s parental rights in April 2017. In the petition, Petitioners alleged that
Father had made no effort to visit the Child since his birth and had not supported the Child.
According to the petition, Petitioners were seeking to terminate Father’s parental rights to
the Child based on the ground of abandonment as defined in Tennessee Code Annotated §
-2-
36-1-102(1)(A). Father filed a letter addressed to the clerk of the chancery court, denying
that he had abandoned the Child.
In January 2020, Petitioners filed a motion to amend, requesting that the petition be
amended to include Father’s most recent rape convictions that resulted in a sentence of
more than ten years. The motion was granted by a consent order. Father filed an answer
to the petition, denying that he had abandoned the Child by failing to visit or support the
Child and that termination of his parental rights was in the Child’s best interest. Petitioners
subsequently filed a second motion to amend the petition “to include more specific grounds
of termination to be added.” Based on the motion to amend, it appears that Petitioners
were seeking to add additional grounds relevant to putative fathers even though this was
not a “putative father” situation. This amendment was granted by the Trial Court in a
subsequent consent order.
A trial was conducted in September 2020, in which the following witnesses testified:
(1) Mother, (2) Stepfather, and (3) Father. At the beginning of trial, Petitioners informed
the Trial Court that they would not be pursuing the ground involving Father’s sentence that
was more than ten years because at the time of Father’s second trial and resentencing, the
Child was more than eight years old.
During trial, Mother testified that she regularly had problems with Father paying
child support after child support was ordered. She stated that she had filed three petitions
for civil contempt due to Father’s failure to pay child support. Mother testified that she
had not received any child support from Father from March 9, 2012 through June 29, 2015.
Mother testified that Father had not had a visit with the Child since Thanksgiving
in 2008. Mother explained that Father had attended supervised visitation for a few months
during the divorce proceedings but that he had stopped coming to the visits. According to
Mother, Father would call her to say he was going to be late, would sometimes show up
extremely late when the visit was about to end, or would not show up at all. Mother
testified that Father eventually just stopped showing up for the visits. According to Mother,
she never usurped or interfered with any mail communication from Father that was
addressed to the Child. Mother further testified that she was not aware of anything she had
done to interfere with Father’s ability to visit the Child before he went to jail.
Furthermore, Mother testified that Father had not petitioned the court to lift the
restriction on his visitation; therefore, she or maternal grandmother had to supervise his
visits with the Child. According to Mother, Father had only sporadic visitation with the
Child. Mother testified that Father had called for the Child a couple of times at eleven
o’clock at night but opined that these calls were inappropriate and too late to be calling a
toddler or minor child. Mother further testified that Father had left presents at Mother’s
home for the Child and had come to the home when the Child was not there. Although she
did not recall the specific gifts, Mother testified that Father had left presents for the Child
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at the home for two or three years after the divorce, always in the month of May.
Thereafter, the presents stopped until after Father was incarcerated. Mother stated that
Father had gone “months at a time” without paying child support for the Child, and “even
years at certain points.”
Mother testified that Father initially sent correspondence to Mother after he was
arrested but that she had tried to stop that by contacting the jail where Father was located.
According to Mother, Father continued sending letters to her and she returned one letter to
him. That returned letter was addressed to Mother directly, and she included an inscription
telling Father to “[g]et a life.” Father subsequently began sending correspondence to the
Child instead of Mother. Mother stated that these letters to the Child did not begin until
Father had been incarcerated for a few years and that the Child received a letter from Father
every two or three months. Mother testified that Father had also sent the Child three gifts
while he had been incarcerated: an adult watch, an adult guitar, and a book.
According to Mother, the Child knew that there was someone else who was his
father but that the Child wanted Stepfather to be his dad. Mother stated that the Child had
began asking if Stepfather could become his “real dad” in about 2016. According to
Mother, the Child refers to Stepfather as “Dad” and Stepfather has been a father to the
Child for ten years. She described Stepfather’s relationship with the Child as “a typical
father/son relationship.” Stepfather and the Child “do a lot of construction” together.
According to Mother, the Child likes helping around the house and the Child helped
Stepfather patch the roof of the house. Stepfather helped the Child with a book for Cub
Scouts, which included learning about electricity, woodworking, and whittling. Stepfather
was at the Child’s “campouts” and picnics and had assisted the Child with badges.
Stepfather had been employed full time at MTD Products for over eight years. At
the time of trial, he was working as a forklift operator. Stepfather testified that he had
known the Child since he and Mother started dating in 2008 and that the Child had been
calling him “Dad” consistently for at least six or seven years. In public, Stepfather
introduces the Child to people as his son. According to Stepfather, he loves the Child and
is committed to him. Stepfather had been providing necessities to the Child, including
food, clothing, shelter, healthcare, transportation, and school, and testified that he was able
to continue providing for the Child’s needs. According to Stepfather, he and the Child
would spend time together in the evenings after work and school, and unless the Child was
with his grandparents, he was around Stepfather “almost every day.” Stepfather testified
that he attended everything that he was able to for the Child’s Boy Scouts and Beta Club,
that he assisted the Child with homework in the afternoons after he got home from school,
and that he was supportive of the Child’s endeavors. Stepfather further testified that the
Child has a close relationship with his half-sister.
Stepfather did not recall Father ever coming by the home to visit the Child after he
began living with Mother or ever hearing Mother tell Father that he could not come visit
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the Child. Stepfather stated that he had spoken with the Child about the fact that he had a
biological father and that Stepfather was not his legal father. Stepfather testified that the
Child initiated the conversation concerning Stepfather adopting the Child and that the Child
had asked him and Mother questions concerning what had occurred with the court case.
According to Stepfather, the Child is supportive of the adoption.
Father was incarcerated in Kentucky at the time of trial. He participated in the
proceedings via telephone and was represented by counsel during trial. Father
acknowledged that he had received some traffic citations and that a case had been filed
against him in Kentucky in January 2010 for “assault fourth degree – child abuse,” to which
he pled guilty. Father explained that he had “spanked [his] girlfriend’s child in public.”
Father testified that as a result of this criminal conviction, he was not sentenced to any jail
time. The criminal record reflects that a restraining order was entered between Father and
the minor victim. Additionally, Father acknowledged a charge for marijuana trafficking in
November 2011, to which he pled guilty and served five days incarceration. Subsequently
in May 2012, Father was charged and pled guilty to making harassing communications.
For that conviction, Father served three days incarceration of a ninety-day sentence.
Concerning his current convictions, Father testified that he had been incarcerated
continuously since March 15, 2013 and that he was appealing those convictions. Father
testified that he was convicted of three counts of first-degree rape that all involved his wife
and that he was also convicted of second-degree assault involving domestic violence.
Father testified that the Child had two older half-siblings in addition to Mother’s
and Stepfather’s child. According to Father, his oldest daughter was almost nineteen years
old, and he had not spoken with her since 2014. Father further testified that he did not have
a relationship with his sixteen-year-old son because he did not have an address for that
child’s mother.
Father testified that in the divorce proceedings, he had contested the court’s order
that required Father to have only supervised visitation with the Child until he had been
taking his medication for at least a year and had completed anger management classes.
Father testified that he had attended three mental health evaluations performed by
psychiatrists or psychologists in 2008 or 2009. According to Father, he was “cleared” by
each psychologist/psychiatrist evaluation he had, did not have any mental disorders, and
did not require medication. Father stated that he also contested the requirement that he
complete anger management classes because they were not necessary and not feasible with
his employment.
Father testified that in 2008 after the parenting plan was entered, Mother and a
police officer told him that he was not allowed to come visit the Child. However, Father
testified that he had visited the Child after that date. According to Father, the first time he
was able to visit the Child was when Mother had contacted him and told him that he could
visit the Child if he agreed to pay Mother’s electricity bill. Father testified that Mother did
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not have the money to pay the bill and her electricity was going to be shut off. He stated
that it took him six hours that day but that he was able to get the money and had arrived at
Mother’s home between 3:00 or 3:30 P.M. He testified that after he gave Mother the money
for the bill, he was able to spend time with the Child while Mother went to get the electricity
turned back on because “they had shut it off early that day.” Father testified that Mother
allowed him to stay for dinner that night. Father further stated that at the end of that visit,
he asked Mother if he could see the Child again, to which Mother agreed and gave him her
cell phone number.
Father testified that Mother had allowed him to see the Child every Sunday when
he was working excavation and rail work, but he had to call her by Friday to set up the
visit. According to Father, this visitation continued for about three or four months in 2009
and 2010 before Mother’s “phone number cut off.” Father stated that he stopped by
Mother’s home but Mother instructed him to leave and informed him that she was calling
law enforcement. Father testified that he told her that he needed a phone number to set up
visits with the Child, and she said “no.” Father further testified that he would go by the
home and bring gifts for the Child but that Mother would not allow him to see the Child.
According to Father, the last time he saw the Child was in 2011 and the last time he
attempted to see the Child was in 2012. Father testified that the last time he visited, he
brought a half-sibling of the Child to visit as well. Father also stated that Stepfather was
living at the home at that time because Stepfather’s motorcycle was parked to the side of
the driveway and Mother had told him Stepfather had taken his truck to work that day.
Father stated that he tried to visit twice in 2012 and that one of those attempts was in March
2012 when he dropped off the Child’s Christmas presents. According to Father, Mother
met him in the driveway and told him that he could not see the Child. The second attempt
was in fall 2012, but no one was at the home. When asked why he had not tried to visit
after those attempts, Father testified that he began working on the riverboat again, was
“trying to work [his] way back up,” and was gone for thirty or forty-two days at a time and
only home for a week or two at a time. According to Father, he was only home for a total
of about six weeks from September 2012 through March 2013.
According to Father, while incarcerated, he had written letters to the Child “monthly
without fail,” sent the Child cards for his birthday and holidays, and sent gifts for the Child
when he could. Father testified that he had sent the Child two guitars, a guitar strap, a
watch, and some books. Father stated that he had not received anything back from the
Child in response to his correspondence or gifts. However, Father testified that he received
returned mail from Mother in 2013 that read: “Get a life. We have.” According to Father,
he continued to try to communicate with the Child despite the letter and sent things to
family members in order to get them to the Child. Father stated that his sister had attempted
to take the second guitar to the Child but that Mother had refused it and threatened to call
law enforcement. Therefore, the Child had not received the second guitar. When asked
how he was able to buy presents for the Child, Father testified that he worked in a barber
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shop in the prison and in addition to his assigned state pay, he “charged people for the
services of receiving their haircuts.” The individuals seeking a haircut would bring Father
bags of coffee as payment for their haircut. Father would then sell the coffee to “somebody
that ran another illegal operation” at the prison. The person to whom he sold the coffee
would then put money in his account that he used to buy gifts for the Child.
Father testified that each time he changed jobs before his incarceration, he would
notify the child support office and it would take them five or six months to send the
paperwork to start the wage assignment with his new employer. Father testified that he
was unable to work for approximately a year following a car accident in August 2011 and
was receiving unemployment benefits at that time. According to Father, he learned that he
could send payments directly to the Central Child Support Receipting Unit and began doing
that. According to Father, he had mailed cashier’s checks from his bank to the receipting
unit while he was on unemployment. However, Father later testified that he was not able
to pay child support while he was on unemployment because the amount of unemployment
compensation was “extremely low” and some of his bills did not get paid during that time.
As a result of the lawsuit filed by Father concerning the accident, Father received
compensation for damages in the amount of $5,000 in June or July 2012.1 Father
acknowledged that none of that amount went toward his child support and stated that he
had to replace a vehicle. Father had started working again in September 2012 for the
riverboat, where he worked until his incarceration.
Father completed an anger management class in 2017 while in prison. Father
testified that he completed the following classes while incarcerated: (1) anger management
classes, (2) anger management mentor class, (3) moral recognition therapy parenting, and
(4) moral recognition therapy trauma for men. Father further stated that he also applied to
take university courses to finish his degree in engineering. Father testified that it would
not be in the Child’s best interest for his rights to be terminated because he loves the Child
and always wanted to see him and talk to him but that he had not been allowed. Father
testified that he was grateful for Stepfather being a father figure to the Child and loving the
Child as his own. However, Father testified that he still wants to be there for the Child.
Father further testified that he was not a good husband and that he had “struck” his wife,
which he acknowledged was unacceptable. Father, however, stated that he had tried to
improve himself since that time.
Following Father’s testimony, Mother testified for purposes of rebuttal. Mother
testified that she never told Father he could not visit with the Child. Mother also stated
that she never told Father he could visit with the Child if he paid her electric bill, that he
never came to her house to see the Child for that reason, and that she never left the Child
1
This amount was what Father actually netted. We note that the Trial Court found in its order that Father
had received a net of $5,100 but that Father testified during trial to receiving $5,000. This discrepancy does
not affect our analysis in any way.
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alone with Father while she went to pay the electric bill. Additionally, Mother testified
that Father’s testimony about his last alleged visit with the Child could not be true because
Stepfather had traded in his motorcycle to buy the truck when Stepfather learned Mother
was pregnant with the Child’s half-sibling, which she stated would have been shortly
before the alleged visit. In response to Father’s testimony that he attempted to visit the
Child in March 2012, Mother testified that she had a C-section in March and would have
been recovering from the procedure. According to Mother, Stepfather and the maternal
grandmother were constantly at the home and that she was not left alone during that time.
Additionally, Mother stated that she never received anything from the court reflecting that
Father was seeking to enforce visitation.
Following trial, Petitioners filed a motion to amend the pleadings to reflect the
abandonment ground as defined in Tennessee Code Annotated § 36-1-102(1)(A)(iv).
According to Petitioners’ motion, this ground was tried by the “express or implied consent
of the parties” and the evidence during trial demonstrated that Father was incarcerated
when the petition was filed and had abandoned the Child by his willful failure to visit or
financially support the Child during the four months preceding Father’s incarceration. This
motion was granted by the Trial Court, and no issue is raised on appeal as to the granting
of this motion.
The Trial Court subsequently entered an order terminating Father’s parental rights
on the statutory grounds that Father abandoned the Child by willfully failing to visit him
and by willfully failing to financially support him prior to Father’s incarceration. In its
judgment, the Trial Court made the following findings of fact and conclusions of law:
[Mother] and [Father] were married March l4, 2006. They have one
child, [the Child], born [in] December . . . 2006. They separated February
13, 2007. This Court granted an absolute divorce to the mother by default
on the grounds of inappropriate marital conduct on September 7, 2007. All
other issues were reserved.
Father filed a motion for specific visitation on February 11, 2008. The
parties entered into a consent order filed April 25, 2008 setting temporary
visitation consistent with father’s employment on a riverboat. By order of
January 12, 2009, this Court entered mother’s permanent parenting plan.
Father’s parenting time was suspended pending a psychiatric evaluation. A
document entitled “Psychological Evaluation” was filed with the Court on
April 23, 2009, which recommended anger management treatment.
Mother married [Stepfather] on September 17, 2016. They have one
child together.
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Father was incarcerated in the State of Kentucky on March 15, 2013
and remains in jail since that date. He was charged in Christian County,
Kentucky on March 15, 2013 for rape in the first degree. After a jury trial,
father was found guilty and received a life sentence. Although the record is
not clear, father appealed this conviction, and the case was remanded to
Christian County, Kentucky Circuit Court. A July 29, 2019 jury trial found
father guilty of three counts of rape in the first degree and sentenced him to
life imprisonment.
Child support records disclose father did not pay child support
beginning October 10, 2007 to April 21, 2008; February 17, 2010 to
December 15, 2008; July 30, 2010 through February 16, 2011; July 18, 2011
through January 5, 2012; and March 9, 2012 through September 29, 2015.
Father testified he attempted to visit his son, but his ex-wife would
not allow visitation. The record is void of any petitions and orders to enforce
his visitation after 2009.
Mother testified father’s visitation before June of 2009 was
“sporadic”. She testified father’s last visit with their son was Thanksgiving,
2008. She denies ever denying father’s visitation. Father testified his last
visit with his son in October of 2011.
Father testified he worked in the excavation business in 2009 to 2010.
He was off work from October, 2011 to September, 2012 from an automobile
accident. He received an $8,000.00 judgment against the other driver and
received a net of $5,100.00, but paid nothing on his child support. Father
testified he became employed on a riverboat in September of 2012.
***
[Mother] testified of her efforts to collect child support after the
divorce and the father’s failure to visit. The records of the child support
enforcement agency reflect long periods of nonsupport. She testified father’s
last visit [was] in 2008. Father testified his last visit was in 2011.
Mother has remarried. Both she and her husband are gainfully
employed. [The Child] has a father/son relationship with her husband. [The
Child] refers to him as “dad.” [The Child] is in the Beta Club and a straight
“A” student at Martin Middle School.
[Stepfather] testified [the Child] asked to be adopted four and one half
years ago. He testified he loves [the Child] and wants to adopt him.
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Father testified he did not visit because the mother would not allow it.
He was employed after the divorce, except for the period of an automobile
accident. He became employed on a riverboat on September of 2012. He
testified he sent letters and cards to [the Child] which mother denies. He
never received a response from [the Child]. He could not contact [the Child
by] telephone because he did not have a working telephone number.
Father testified he never completed the required anger management
course due to his riverboat job, but he did complete a course in 2019 while
in prison.
Father denies termination of his parental rights is in [the Child’s] best
interest. “I am still his dad. I want to see him. I love him.”
Father has two other children. He has had no contact with them since
2013.
GROUNDS
After trial, the Court ruled from the bench that [Father] had abandoned
[the Child] by clear and convincing evidence that he willfully did not visit or
support [the Child] for four (4) months before his incarceration in March 15,
2013. T.C.A. §36-1-102 (1)(A)(iv). Father failed to visit since 2008 by
mother’s testimony and since 2011 by his testimony. Father was gainfully
employed on a riverboat from September, 2012 till the time of his
incarceration and paid no child support. Father made no timely effort for the
Court to enforce his visitation.
At the beginning of the trial, petitioners’ attorney announced the
amended ground of conviction of more than ten (10) years would be
withdrawn. At closing, petitioners’ attorney requested the Court to consider
this ground which the Court denied.
BEST INTEREST
The Court has considered all the relevant factors in T.C.A. § 36-1-113
(i) as to whether termination is in [the Child’s] best interest. Father has failed
to maintain regular visitation or other contact with the child. The physical
environment of [Petitioners’] home is healthy and safe. [The Child] is doing
exceptionally well in school. There is no meaningful relationship between
[the Child] and his father. Therefore, the Court finds by clear and convincing
evidence that termination is in [the Child’s] best interest.
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Thereafter, the Trial Court entered an order approving the Stepfather’s adoption of the
Child. Father timely appealed to this Court.
Discussion
Although not stated exactly as such, Father raises the following issue for our review
on appeal: whether the Trial Court erred by terminating Father’s parental rights to the
Child. As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
113(l)(1); see also Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds3 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; 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). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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Although several factors relevant to the best interests analysis are statutorily
enumerated,4 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a 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; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
4
Tenn. Code Ann. § 36-1-113(i).
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re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must 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 Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). In combination with a best interest finding, clear and convincing evidence
supporting any single ground will justify a termination order. E.g., In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).
On appeal, Father raises only the broad issue of whether the Trial Court erred in
terminating his parental rights to the Child. In his brief, Father does not separately address
grounds for termination and the best interest analysis in his argument section. Although it
is somewhat unclear, it appears that the argument section of his brief is related only to the
best interest analysis. Nonetheless, our Supreme Court has instructed “that 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 (footnote omitted). Therefore, we will address on
appeal the statutory grounds found by the Trial Court in terminating Father’s parental
rights, as well as the best interest analysis.
We first address the statutory grounds utilized by the Trial Court in terminating
Father’s parental rights to the Child. The Trial Court found that Father had abandoned the
Child by willfully failing to visit and financially support him during the four months prior
to Father’s incarceration. Father was incarcerated on March 15, 2013, where he remained
at the time of trial. Therefore, the relevant four-month period for purposes of the
abandonment grounds at issue extended from November 15, 2012 through March 14, 2013.
See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.
App. Feb. 20, 2014).
Tennessee Code Annotated § 36-1-113(g)(1) (2017) provides abandonment by a
parent as a ground for the termination of parental rights. Since Father was incarcerated at
the time the termination petition was filed, the relevant statute defining abandonment is
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Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017). We note that the termination
petition was filed in April 2017 and that the relevant statute in effect at that time concerning
abandonment stated as follows in pertinent part:
For purposes of terminating the parental or guardian rights of a parent or
parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
(iv) 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. . .
. A finding that the parent has abandoned the child for a defined period in
excess of four (4) months that would necessarily include the four (4) months
of nonincarceration immediately prior to the institution of the action, but
which does not precisely define the relevant four-month period, shall be
sufficient to establish abandonment[.]
Tenn. Code Ann. § 36-1-102(1)(A) (2017). The version of Tennessee Code Annotated §
36-1-102(1)(A)(iv) in effect in April 2017 required that a parent’s failure to visit and
support be willful.
Concerning the statutory ground of abandonment by failure to visit, the Trial Court
found that Father had willfully failed to visit the Child during the four months prior to his
incarceration. Mother testified that Father had not visited the Child since Thanksgiving
2008. However, Father testified that his last visit occurred in 2011. Considering either
version of events, it is undisputed that Father did not visit with the Child at all during the
relevant four-month period prior to his incarceration. Father argued during trial that
Mother had not allowed him to visit the Child since 2011. Mother, however, denied that
she had ever prevented Father from visiting with the Child. Stepfather also testified that
he had never witnessed Mother denying visitation to Father. Father provided no evidence
other than his own testimony to prove that Mother had prevented him from visiting the
Child after 2011. The Trial Court clearly did not find Father’s testimony credible. Father
never completed the court-ordered anger management classes prior to his incarceration so
any visitation Father received would have been required to be supervised by either Mother
or the maternal grandmother. Although Father claims that Mother prevented him from
visiting, Father never attempted to enforce his visitation in the Trial Court. The Trial Court
found that the record was devoid of any petitions or orders wherein Father was seeking to
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enforce his visitation and that Father had made no timely effort to enforce such visitation.
Therefore, the Trial Court terminated Father’s parental rights upon its finding, by clear and
convincing evidence, that Father had abandoned the Child by willfully failing to visit him
during the four months prior to his incarceration. Upon a review of the record, the evidence
presented at trial supports the Trial Court’s finding in this regard by clear and convincing
evidence. Therefore, this ground is affirmed.
As to the ground of abandonment by failure to financially support, the Trial Court
found that Father willfully failed to support the Child prior to his incarceration. This Court
has held that “‘[f]ailure to support a child is ‘willful’ when a person is aware of his or her
duty to support, has the capacity to provide the support, makes no attempt to provide
support, and has no justifiable excuse for not providing the support.’” In re M.L.D., 182
S.W.3d 890, 896 (Tenn. Ct. App. 2005). Father was employed on a riverboat from
September 2012 through his incarceration in March 2013, encompassing the relevant four-
month period. Father had not paid child support for the Child consistently prior to his
incarceration. Child support records reflect that Father paid no financial support for the
Child in the four months prior to his March 2013 incarceration. The most recent child
support payment made before Father’s incarceration was in March 2012, well outside the
relevant four-month period. At trial, Father did not testify of any child support payments
made by him for the benefit of the Child during those four months. Father testified that he
was unable to work for approximately a year due to a car accident in August 2011;
however, he was medically cleared to return to work in September 2012. As a result of
Father’s accident, he netted $5,000 and admitted that he had not used any of the money he
received to pay child support. Although Father was able to work and was employed full
time on a riverboat during the entire four months prior to his incarceration, the records
show that Father paid no child support during that time. Father provided the court with no
reasonable excuse for his failure to support the Child. The evidence does not preponderate
against any of the Trial Court’s findings relevant to this ground. Upon a review of the
record, we find and hold that Petitioners had proven by clear and convincing evidence that
Father abandoned the Child by willfully failing to support him. We, therefore, affirm this
ground.
Next, we will address whether the Trial Court erred by determining that termination
of Father’s parental rights was in the Child’s best interest. Tennessee Code Annotated §
36-1-113(i) provides a set of non-exclusive factors courts are to consider in determining
whether termination of parental rights is in a child’s best interest:
(i) In determining whether termination of parental or guardianship rights
is in the best interest of the child pursuant to this part, the court shall
consider, but is not limited to, the following
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(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or
controlled substance analogues as may render the parent or guardian
consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for the
child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant
to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2019).
With regard to making a determination concerning a child’s best interest, our
Supreme Court has instructed:
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When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 861). “After making
the underlying factual findings, the trial court should then consider the
combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest[s].”
Id. When considering these statutory factors, courts must remember that
“[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a]
focus on the perspective of the child is the common theme” evident in all of
the statutory factors. Id. “[W]hen the best interests of the child and those of
the adults are in conflict, such conflict shall always be resolved to favor the
rights and the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d)
(2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
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In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
The Trial Court considered the relevant factors in Tennessee Code Annotated § 36-
1-113(i) in making its decision. Father had a lengthy history of criminal activity in his
home prior to his incarceration. Father had been convicted of fourth-degree assault related
to child abuse, trafficking marijuana, making harassing communications, and second-
degree assault involving domestic violence. Father admitted during trial that he had
previously struck his wife. Father also was convicted of three counts of first-degree rape,
including one count of first-degree rape with serious physical injury, for which he is in
prison serving a life sentence. Additionally, Father made statements during trial regarding
his haircutting venture in prison and involvement with “another illegal operation in the
facility” in order to obtain money above his assigned state pay. Although Father had
completed some classes while in prison, it is clear from the evidence presented that Father
has not made an adjustment to his conduct or circumstance such that the Child could safely
be placed in his custody.
According to Father, the evidence supported that he had made attempts to maintain
contact with the Child. However, the Trial Court found that Father had failed to maintain
consistent visitation with the Child throughout the years. Father had not completed anger
management treatment prior to his incarceration that would have lifted the supervised
restrictions on his visitation with the Child. He had not seen the Child since at least 2011
by his own admission, which was approximately nine years prior to trial. Despite claiming
that he was denied visitation, he had never filed any pleadings in court to attempt to enforce
his visitation. Father testified that he wrote to the Child every month while he was
incarcerated. However, Mother testified that Father began sending letters to the Child in
late 2016 or early 2017 and that he sent a letter every two or three months. Father stated
that he never received any correspondence back from the child in response to those letters.
Mother stated that the Child knew of Father’s existence but that he had a close relationship
with Stepfather and referred to Stepfather as “Dad.” The Trial Court found that no
meaningful relationship existed between Father and the Child, which is supported by the
evidence presented at trial.
Father had paid some child support throughout the years, although not regularly.
No child support for the Child was paid by Father for approximately a year prior to his
March 2013 arrest. Father had purchased some gifts for the Child following the parents’
divorce, and while incarcerated, he had bought gifts for the Child from the proceeds of his
haircutting venture in prison. However, Father had not consistently paid child support for
the Child pursuant to the child support guidelines.
Father acknowledged in his brief that there was testimony presented during trial that
the Child was well adjusted in his current living situation but argued that there was no
expert proof to support that. However, we note that such expert testimony is not a pre-
requisite for a determination by the Trial Court that terminating Father’s parental rights is
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in the best interest of the Child. See In re S.A.C., No. M2009-00532-COA-R3-PT, 2009
WL 3172131, at *9 (Tenn. Ct. App. Sept. 30, 2009) (“[T]he best interest inquiry is fact
intensive, and expert testimony is not a factor that must be given weight by the court.”).
The evidence presented demonstrated that the Child was thriving in the home of Mother
and Stepfather and that he was doing very well in school. Father acknowledged during
trial that he was grateful that Stepfather had taken on the role of a father figure for the Child
and that Stepfather evidently loved the Child as his own son. The Trial Court found that
Petitioners’ home was safe and healthy for the Child. Conversely, Father is incarcerated
serving a life sentence in prison. Based on the relevant statutory best interest factors, the
Trial Court found that it was in the Child’s best interest for Father’s parental rights to be
terminated. The evidence does not preponderate against any of the Trial Court’s findings
relevant to best interest. Upon a review of the record, we find and hold that Petitioners
have proven by clear and convincing evidence that termination of Father’s parental rights
is in the Child’s best interest. Therefore, we affirm the Trial Court’s finding in this regard.
Conclusion
The judgment of the Trial Court terminating Father’s parental rights to the Child is
affirmed in all respects. This cause is remanded to the Trial Court for collection of the
costs assessed below and for enforcement of the Trial Court’s order terminating Father’s
parental rights to the Child. The costs on appeal are assessed against the appellant, James
H., II, and his surety, if any.
s/ D. Michael Swiney_______________
D. MICHAEL SWINEY, CHIEF JUDGE
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