In re Makenzie L. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 24, 2015 Session
Assigned on Briefs March 11, 2015
IN RE MAKENZIE L.
Appeal from the Juvenile Court for Davidson County
No. PT172865, No. 20131558 Ben H. Cantrell, Judge
No. M2014-01081-COA-R3-PT – Filed June 17, 2015
No. M2014-02285-COA-R3-PT - Filed June 17, 2015
In this termination of parental rights case, paternal great-aunt and great-uncle, who were
named ―primary residential parents‖ of a minor child, filed a petition to terminate the
parents‘ rights to their daughter on the grounds of persistence of conditions that led to
removal, severe abuse, abandonment by failure to visit, and abandonment by failure to
support. The trial court held that grounds did not exist for termination and returned the
child to the custody of the parents. We have reviewed the record and affirm the trial
court‘s findings with respect to persistent conditions and abandonment by failure to visit.
However, we have determined that the trial court erred in excluding evidence of alleged
sibling abuse in rendering its decision that the grounds of severe abuse were not proven.
In addition, we hold that there is clear and convincing evidence that the parents
abandoned the child by failing to support her in the four months preceding the filing of
the petition. Finally, we affirm the trial court‘s holding with respect to attorney‘s fees.
Therefore, having found that the trial court erred in failing to consider evidence of
alleged sibling abuse and that a ground exists for termination, we remand the case for the
trial court to consider whether the ground of severe abuse, as defined by Tenn. Code Ann.
§ 36-1-113(g)(4) is proven by clear and convincing evidence and whether termination of
parental rights is in the child‘s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed in Part, and Remanded
ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.
Gary M. Williams, Hendersonville, Tennessee, for the appellants, Ronda and Eugene
Melton.
Connie Reguli, Brentwood, Tennessee, for the appellees, Adam and Ashley E.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Makenzie L. was born in May 2008 to Ashley L. (―Mother‖) and Adam E.
(―Father‖) (collectively, ―the parents‖). At the time of Makenzie‘s birth, Mother was
married to Brett L.; however, it is undisputed that Adam E. is Makenzie‘s biological
father. When Makenzie was approximately six weeks old, Mother and Father left her in
the care of Father‘s aunt and uncle, Ronda and Eugene Melton (collectively referred to as
―the Meltons‖). In 2009, Mother and Father had a son, Ashton L. When Ashton was
approximately one month old, Mother and Father left him in the care of his paternal
grandmother, Patricia Sparks. Ashton is not the subject of this appeal.1
February 2012 Order Naming the Meltons as Makenzie‘s Primary Residential Parents
In 2011, the Meltons filed a petition seeking to restrict Mother‘s and Father‘s
visitation rights.2 The case was heard by the Sumner County Juvenile Court, and an
order was entered February 1, 2012, in which the trial court named the Meltons as
Makenzie‘s primary residential parents. In support of its finding that it was not in
Makenzie‘s best interest to be in Mother‘s and Father‘s custody, the trial court found:
13. The Court does find that the parents Ashley and Adam E[.], do have
domestic violence issues and have subjected the children to their domestic
violence.
14. The Court finds that the parents, Ashley and Adam E[.], denied all the
allegations. The Court does not put credence in their testimony and finds
that the majority of their testimony is perjured.
15. The Court finds that the parents did little to get their children back
prior to the filing of the Complaints and that they were satisfied to have the
1
Mother and Father had another child, Levi, born in 2013; Levi resides with Mother and Father
and is not the subject of this appeal either. Mother also has a son, Eric L., from her first marriage, who is
in the custody of his father, Mother‘s ex-husband. Eric is also not involved in this appeal.
2
Ms. Sparks also filed a petition to limit Mother‘s and Father‘s parenting time with Ashton. Ms.
Sparks‘s petition was consolidated with the Meltons‘ petition for purposes of the final hearing.
2
children with relatives. They exercised sporadic parenting time at best;
and, that they paid little to no child support although the caregivers did not
ask for any child support.
16. The Court recognizes parents have superior rights over any third party
or government intervention unless it is proven that the child is in danger
due to the parents[‘] actions or lack of actions.
17. The Court finds Ms. Sparks and the Meltons have the best interest of
the children at heart but that it will be difficult for them to work with the
Court in an effort to reunite the children with their parents.
18. The Court finds that due to the children being with the Petitioners since
newborns, removing them from the Petitioners would be improper and
abusive to the children. It is in the best interest of the minor children, at
this time, for Patricia Sparks to be named as the primary residential parent
of the minor child, Ashton L[.], and for Ronda and Eugene Melton to be
designated as the primary residential parent of the minor child, Makenzie
L[.]. It is not in the best interest that the minor children be returned to the
custody of Ashley E[.] and Adam E[.] at this time.
19. The Court finds that the parents have domestic violence issues and
because the Court has little credence in their testimony, the Court has
concerns about the moral ability of the parents to raise the children at this
time. The Court reiterates its findings that it is not in the best interest of the
children to place them back in the custody of Ashley E[.] and Adam E[.] at
this time.
20. The Court admonishes the Petitioners to work together with the parents
in support of reuniting the parents with their children.
...
It is, accordingly,
ORDERED, ADJUDGED AND DECREED that Ronda Melton and
Eugene Melton are designated as the primary residential parents of
[Makenzie] L[.] pending further Orders of the Court.
The court awarded parenting time to Mother and Father during alternating weekends, on
holidays, and during the summer.
On July 30, 2012, Mother and Father visited with Makenzie and Ashton. When
the children were returned to their respective primary residential parents, it was
discovered that Ashton had suspicious marks on his face and neck. Ashton was
3
examined, and the Department of Children‘s Services (―DCS‖ or ―the Department‖)
became involved. After this incident, Mother and Father‘s visitation with Makenzie and
Ashton ceased, although there was no court order requiring cessation of Mother‘s and
Father‘s visits with Makenzie. By letter dated March 12, 2013, Mother and Father‘s
attorney requested the Meltons to abide by the February 2012 order awarding parenting
time to Mother and Father.
April 2013 Petition to Terminate
The present appeal arises from the Meltons‘ filing a petition on April 11, 2013, to
terminate Mother‘s and Father‘s parental rights on the grounds of persistent conditions,
severe abuse, and abandonment by failure to visit and support in the Davidson County
Juvenile Court.3 Attached to the petition were letters from Makenzie‘s pediatrician and
therapist who wrote in support of the petition to terminate. On April 19, 2013, the
Meltons filed an emergency ex parte motion requesting the court to suspend visitation
with Mother and Father. The trial court granted the order that same day and suspended
Mother‘s and Father‘s visitation ―pending further orders of the court.‖4
Several motions and orders were filed, including a petition for criminal contempt
by Mother and Father, which was ultimately nonsuited. A special judge was assigned to
hear the case following the recusal by the trial court judge. Prior to the hearing, Mother
and Father filed a motion in limine requesting the court to exclude any ―statements in the
medical records from Patricia Sparks or Ronda Melton, which are reported comments
made by Ashton [L.] or Makenzie [L.]‖
The Hearing
The trial court held a hearing on the petition to terminate on March 4, 5, and 6,
2014. Prior to hearing proof, the court announced its ruling on Mother and Father‘s
motion in limine, stating: ―it seems to me that the motion to restrict the treating
professionals‘ testimony, with respect to what has happened to Ashton, is well taken,
that‘s simply not - - it‘s not relevant to this proceeding.‖
The Meltons called Janet Weismark, a licensed clinical social worker as an expert
witness. Ms. Weismark testified that she began counseling Makenzie in May 2011 and
3
Prior to filing the petition to terminate, the Meltons filed a Petition for Adoption and to Terminate the
Parental Rights of Adam E[.] and Ashley E[.] in the Roberston County Chancery Court on February 11,
2013. That petition was ultimately dismissed. We will discuss this portion of the procedural history as it
relates to the issues on appeal.
4
In the May 7, 2014, memorandum and order, the trial court stated that Makenzie did not see her parents
from July 31, 2012, until ―this Court allowed supervised visitation in December of 2013.‖ However,
there is no order reflecting this award of supervised visitation in the record.
4
had engaged in approximately forty counseling sessions with Makenzie. Ms. Weismark‘s
testimony focused on counseling sessions that occurred from February 2012 to July 30,
2013. Ms. Weismark‘s ―progress notes‖ from those counseling sessions were entered
into evidence. When asked what statements or revelations Makenzie made regarding
potential abuse in Mother and Father‘s home, Ms. Weismark testified that Makenzie
reported: ―when she cried her [M]other says ‗go away‘‖; that she had to change her little
brother‘s diapers; that her parents told her little brother not to ―mess in his diapers
anymore‖; that she burned her finger at her Mother‘s house on an overturned lamp; that
her Mother and Father ―popped her on the butt‖; that she observed Mother and Father
taking a bath together and her Father ―playing with his private part in front of her‖; that
her Father swore at a broken tv set; that she witnessed her Mother hit Ms. Melton; that
she and Ashton were allowed to play outside in 108 degree weather and that Ashton
threw up; that she witnessed Ashton being hit in the face by Mother; and that Mother
―smacked‖ her in the face. Ms. Weismark further testified that Makenzie drew a hand
with long colored fingernails and talked about her Mother ―scratching Ashton‘s face.‖
Makenzie also stated she was having nightmares about a witch who was going to take her
away from the Meltons.
At a counseling session on December 19, 2012, Ms. Weismark recorded the
following progress notes:
Client said there was a time her mother (Ashley) put her and her brother in
the attic. She talked about the attic door being in the ceiling . . . a string on
the door. Ashley closed the attic door and left her and her brother there.
We screamed and daddy heard it and he got us out. When Adam and
Ashley fight, she feels scared.
Ms. Weismark‘s progress notes for a counseling session on February 27, 2013, state:
Makenzie said her mother put her in the bathroom [with] her brother (in the
brick house) and told them wait there. She brought a rope and tied them up
and then went to watch TV. ―I cried. I almost died because it was on my
throat.‖ Ashton cried too. Adam was at work. Makenzie said she was able
to get out of the rope and go to her room and watch TV.
During her counseling visits in March, April, and May, Makenzie discussed ―fearful
feelings‖ and described Mother and Father as ―mean.‖ In June, Makenzie reiterated that
―Ashley put Ashton in the attic because he kept pooping in his diaper.‖
On cross-examination, Mother and Father‘s counsel pointed out that when
Makenzie disclosed that she had been tied up with a rope, Makenzie ―ha[d]n‘t been
around her parents for some six months plus.‖ Ms. Weismark also testified that
Makenzie disclosed that Ms. Melton ―spanked‖ her. On re-direct examination, Ms.
5
Weismark addressed Makenzie‘s delay in disclosure of the rope incident and stated,
―Well, sometimes in, traumatic events, children put them out of their mind. And then
once they feel really safe, they‘ll come out with it.‖
Next, the Meltons called Dr. Catherine Dundon and tendered her as an expert
witness in pediatrics. Dr. Dundon testified that she treated Makenzie for ―routine check-
ups and all common childhood illnesses.‖ Dr. Dundon testified that Ashton is also her
patient. When Dr. Dundon was beginning to discuss her observation of Ashton following
an incident in 2012, counsel for Mother and Father objected to the introduction of a
photograph of Ashton‘s injuries. The following colloquy resulted:
THE COURT: Well, I think we‘ve been through that. And I have said that
the abuse of Ashton is not relevant to this proceeding, unless it somehow
amounts to abuse to Makenzie. Now, I‘m not sure that this witness can
give us an opinion about whether or not what happened to Ashton is an
abuse of Makenzie.
[Meltons‘ Counsel]: Well - - And I certainly understand and respect that,
Judge. But severe abuse of one sibling can be used in a - - or petition to
terminate parental rights. I mean, even - - We‘re alleging that the abuse of
Ashton could certainly be considered by [t]his Court in this petition to
terminate as relates to Makenzie. Because the abuse of one sibling has
relevance, if it please [t]he Court.
THE COURT: Well, I think we‘re going to spend a lot of time on that, and
so I‘m going to sustain the objection.
When asked about her concerns as it relates to abuse of Makenzie, Dr. Dundon
stated:
When the incident occurred with the brother, there had been so much
trouble with coordination, the two children live in different counties and
different D.C.S.s and the parents were in a different county. And I‘m
listening to all those concerns and it‘s not -- So we -- I kind of thought,
finally, when we had concrete evidence on Ashton, and when I spoke with
the people at Vanderbilt and social workers -- Their business, they do a lot
of child abuse -- that this would be enough to protect the children ‗cause
it‘s hard -- It is subjective and lots of bruising and lots of stories and
different people telling me whatever.
But then there was concern that they would apply that to Makenzie,
even though she‘s only a year older and right there in the household at the
same time, that it might not apply to her and that we needed to make a
6
statement about her separately. And I think there was family ‗cause they‘re
in the custody of a paternal great-aunt and a paternal grandmother, instead
of one person. And so I asked if -- if they -- she would help me pull
information together and then I would make a report for Makenzie, which
isn‘t as concrete as Ashton, where I feel fairly certain of my stand and what
I saw. Just lots of concerns with Makenzie with bruising, with statements
being locked up in closets and inappropriate discipline and negative
statements and fearful statements and not working together as a family,
trying to say awful things about caretakers and just destructive.
Next, Ronda Melton took the stand. After several objections, the trial court
requested the Meltons‘ attorney to focus his questions on events occurring after the
February 2012 order was entered. When asked how much visitation Mother and Father
have had with Makenzie since February 2012, Ms. Melton responded that they visited
with her ―sporadically.‖ Ms. Melton recounted several occasions where Mother and
Father would cancel their scheduled visitation with Makenzie. On one occasion they
canceled to ―move someone‖ and another time they canceled because of illness. Ms.
Melton testified that Mother and Father ―never sent Makenzie a card, a present, anything,
the entire time that we‘ve had her . . . they‘ve never called and wished her a happy
birthday, they‘ve never called her when she‘s been sick.‖ Ms. Melton stated that Mother
and Father gave Makenzie a horse a ―few weeks ago‖ after the court ordered supervised
visitation. Ms. Melton stated that Mother and Father failed to show up for visitations on
President‘s Day and on Memorial Day without explanation.
Ms. Melton explained that Mother and Father often cursed at the Meltons when
the parties would meet at the designated spot for parenting time exchanges. In June
2012, the hostility between the parties became physical when Mother put her finger in
Ms. Melton‘s face and Ms. Melton ―pushed her hand out of the way . . . [and] she started
tearing into me, hit me; pulling my hair; fighting at me; calling me names. She said ‗I‘m
gonna f--- you up, b---- . . . .‖ The children were present during the altercation.
Ms. Melton testified that in July 2012, Mother‘s and Father‘s visitation with
Makenzie ceased. She stated that ―D.C.S. stopped it‖ following an incident with Ashton.
The specifics of the incident with Ashton were not discussed due to the trial court
sustaining several objections by Mother and Father‘s counsel. Ms. Melton then explained
that Mother and Father did not visit with Makenzie, nor did they call the Meltons to
check on her, from July 2012 to April 2013. Next, Ms. Melton was asked whether
Mother and Father ever provided financial support for Makenzie. She answered:
A. There was only one time that they . . . ever give Eugene and I some
money, and that was . . . when she was a baby. . . . Probably four years ago.
Q. Okay. Since that time, have you received any financial assistance,
whatsoever, from either the mother or the father?
7
A. No, it was just that one time.
...
Q. Well, have the parents been by your house and dropped diapers off or
clothes or food, things of that nature - -
A. No.
Q. - - for their child?
A. Never.
...
Q. Have they ever inquired of you as relates to what they need to do to
assist in paying the medical expenses?
A. No.
Q. What about the counseling expenses?
A. No.
...
Q. Have you ever received any child support from your efforts to have the
parents pay child support?
A. No.
Next, Ms. Melton was asked to discuss any evidence of abuse Makenzie exhibited
following visits with Mother and Father from February 2012 until the visits with Mother
and Father ceased in July 2012. Ms. Melton stated:
She - - she‘s had bruises on her, she‘s had a bruise on her side before, she‘s
had scratches on her neck and her chest, she‘s had a bruise on her forearm
and a bruise on her buttocks before. She came home with burns on her
fingers and a cut on the other hand, at the same time.
Finally, Ms. Melton testified that she and Makenzie had a strong bond and that Makenzie
was performing well in school.
On cross-examination by the parents‘ counsel, Ms. Melton admitted that she did
not notify Mother and Father of every counseling session Makenzie attended, as the
February 2012 Order required. Ms. Melton also confirmed that she did not have any
―out-of-pocket expenses‖ for Makenzie‘s medical care because Makenzie was on
TennCare.
The guardian ad litem asked Ms. Melton why she felt it was in Makenzie‘s best
interest for Mother and Father‘s parental rights to be terminated, and Ms. Melton
responded:
Well, because they‘ve never really actually had much visitation with
her. I mean, from the time she was born, we‘ve been keeping her for weeks
8
and months at a time. They went off and left her without letting us know
where they were going or how long they were gonna be gone.
You know, we‘ve had her - - Like, one time we had her two-and-a-
half months straight, and we didn‘t even know where they were.
So, you know, all these times that she‘s been with us, from the time
she was two weeks old on, she‘s been with us 80 to 90 percent of her life,
until we got her, you know, the temporary custody and then full custody
with Judge Brown.
Eugene Melton was the next witness. He testified that he works 75 to 80 hours per
week as a paramedic and earns approximately $95,000 per year. He stated that he loves
Makenzie ―like she‘s my kid‖ and has been happy to provide for her over the past several
years. On cross-examination, Mr. Melton admitted that he filed for bankruptcy in 2002.
He stated that he has borrowed money to pay for his legal fees in the present case. He
also testified that his wife has long fingernails that are akin to the drawing Makenzie
provided to her therapist. When cross-examined by the guardian ad litem, Mr. Melton
reiterated that the parents have not paid ―so much as a penny‖ in child support for
Makenzie.
Patricia Sparks, Makenzie‘s paternal grandmother, testified next. She explained
that she has custody of Ashton, Makenzie‘s younger brother. Ms. Sparks testified that
she makes an effort to allow Ashton and Makenzie to spend time together and that she
communicates frequently with Ms. Melton. She described witnessing positive
interactions between Makenzie and the Meltons and discussed several outings that she
and Ashton went on along with the Meltons and Makenzie. Ms. Sparks testified
regarding a voicemail she received from Father in December 2012, and the voicemail was
played into evidence. Ms. Sparks believed that Father left the voicemail by mistake and
that she could hear the parents screaming at each other and Father accusing Mother of
cheating on him. On cross-examination, Ms. Sparks testified that Mother and Father
initially left Ashton in her care in order to be in Florida to care for Ms. Sparks‘s brother,
who was very ill.
Next, Mother was called to testify by the Meltons‘ attorney. She stated that she is
twenty-seven years old and has four children. Her oldest son, Eric L., is in the custody of
her ex-husband, and she has not exercised visitation with him because her ex-husband
―totally cut off all communication‖ with her when she married Father. Mother is a ―stay-
at-home-mom‖ with her six-month-old son, Levi. She stated she has not worked since
February 2012. Mother testified that Makenzie initially went to stay with Ms. Melton
when Makenzie was approximately six weeks old because Mother had to go work with
Father out of town.
9
When asked regarding the efforts she made to see Makenzie subsequent to
February 2012, Mother answered:
A. From February of 2012, we had visitations with Makenzie until July,
the end of July of 2012.
Q. What happened to your visitations in July of 2012?
A. We got a phone call from Jamilla Frazier[5] saying that they had been
suspended. And she had asked us to sign something, and we were not
gonna sign it. So then I went - - We went and hired - - we hired our
attorney, David, he said ―don‘t do anything,‖ he told us to just sit still and
pause - -
Mother stated that she did not keep records of her parenting time or the dates that she
showed up to exercise parenting time. When asked what she had done subsequent to
February of 2012 to try to get Makenzie back, Mother responded that ―we have paid over
$70,000 in attorneys [fees] to try to get Makenzie back.‖ The questioning then turned to
whether Mother had paid any child support or had offered any financial support to
Makenzie:
Q. May I ask you, ma‘am, have you paid a nickel for the financial support
of Makenzie?
A. Like I said, I had - - I‘m paying - - we‘re paying a thousand dollars - -
THE COURT: Wait, wait, wait. The question was how much have you
paid for Makenzie. Now, answer that, and then you can explain it
...
A. We have - - I haven‘t been ordered to pay child support for Makenzie.
THE COURT: Well, no, no - - . . . How much have you paid, answer that
first.
THE WITNESS: Nothing.
THE COURT: Okay. Then you can explain it.
THE WITNESS: The reason why is because we‘re paying our attorney a
thousand dollars a month. Number Two, I‘ve never been ordered to pay
child support. Number three, I‘m not even working, I - - How would I
provide even child support for Makenzie myself. Adam is the provider of
the home, we are married, that is her father.
Mother then testified that she believed her children had been ―stolen‖ from her and
that the Meltons had ―manipulated us and . . . the courts to take our children.‖ When
asked about the injuries that Makenzie had following visits with Mother and Father (such
as a burned finger or bruising), Mother responded that ―accidents are gonna happen . . .
[k]ids are very exploratory and are going to fall; they‘re gonna touch things; . . . things
5
Jamilla Frazier is apparently an employee of DCS.
10
are gonna happen, that is part of learning with them.‖ Mother testified that she didn‘t call
or send a card to Makenzie on her fifth birthday because she is ―afraid to call the
Meltons.‖ Mother stated she didn‘t know whether she notified the Meltons when she
moved, but that she felt like it was her ―attorney‘s job‖ to notify them.
The guardian ad litem then cross-examined Mother. Mother stated that she and
her husband are financially able to care for Makenzie, that she has a room set up for
Makenzie in her home, and that she is able to take her to school. The guardian ad litem
asked Mother regarding the February 2012 ruling as follows:
Q. Can you just tell me in as plainest terms as you can what you think that
order says about being reunited with your children?
A. I believe, in my terms, like Judge Brown left it up to the custodians to
reunite us with our children.
Mother testified that she never put Makenzie in the attic and that her attic did not have a
string; rather, it has a handle on the door. Mother testified that she did not contact
Makenzie from July 2012 to December 2013 because she ―had no way to.‖ She stated
she never sent Christmas presents because ―we were afraid that Ronda wouldn‘t give
them to her‖ and that she was scared to contact the Meltons.
Mother was again questioned about her financial support of Makenzie:
Q. The reason I ask is because you understand that Makenzie [needs food,
clothing, etc.] too, right?
A. Exactly.
Q. And you feel like you have an obligation to pay for that for her?
A. Yes.
Q. You do?
A. When she‘s with us.
Q. But not when she‘s with the Meltons?
A. I have not been ordered to pay child support.
Q. I understand that. But you don‘t think you have any obligation to pay
for any of those things for your daughter?
A. They‘ve never asked.
On cross-examination by her counsel, Mother testified that when Makenzie would
visit, she would repeatedly ask when would she be able to live with Mother ―for good.‖
Several photographs of Mother with Makenzie were entered into evidence. When asked
to describe any indications that Makenzie was emotionally or psychologically abused at
the Meltons‘ home, Mother stated that Makenzie told her she had to ―clean up cat vomit‖;
scrub the floors; that Ronda spanks her; and that Makenzie discussed talking with the
―judge.‖ Mother also described the altercation between herself and Ms. Melton. She
11
stated that Ms. Melton punched her in the back. Mother stated that she doesn‘t abuse
drugs, that she isn‘t a smoker. Mother testified that she did try to go to the parenting
exchange spots between August 2012 and April 2013 but that the Meltons never showed
up. Mother admitted that she didn‘t have any records or a calendar to confirm the dates
she showed up because she doesn‘t ―document [her] life.‖ Mother stated she was
unaware that Makenzie was in counseling until the guardian ad litem mentioned it to her.
Mother described a supervised visitation she had with Makenzie on December 22, 2013.
She stated that Makenzie enjoyed the visit and that their interactions were positive.
The trial court judge interjected and posed the following questions to Mother:
THE COURT: All right. Ms. E[.], I have a couple of questions. And I
don‘t want to open up this wh[o]le case, but your position has been
consistent that the Melton‘s [sic] stole your child from you; is that correct?
THE WITNESS: Yes.
THE COURT: When was the first time, if you remember, that you asked to
get your child and they refused to let you have her?
THE WITNESS: In March, when they filed the order to have - - to have an
emergency removal, I tried to go pick her up that Monday that I was
supposed to go pick her up, and they didn‘t - - I don‘t - - they didn‘t even
have the order signed ‗til, I think, it was the day after. And Ronda kept her
from me and prevented me from picking her up.
THE COURT: And that was what year?
THE WITNESS: Two-thousand-eleven, when this all started.
THE COURT: All right. You also said in your testimony yesterday that
the reunification wasn‘t working. So what was it that wasn‘t working about
the reunification?
THE WITNESS: The Melton‘s [sic] would not work with us to bring her
back. They never wanted to increase any visitation. We went by the court
order, there was no reason for them not to go by the court order to reunion -
- reunify us with her. They have wanted her since they have - - from the
beginning. They have always wanted Makenzie ‗cause Ronda has always
wanted another daughter.
The more that I let Makenzie stay with them - - because I trusted her
as a family member and as a babysitter, I wanted her to spend time with
Makenzie, she enjoyed it, Makenzie enjoyed it. But I didn‘t think this
would happen from it, and I never got my baby back.
On re-direct examination, Mother admitted that she had been served with a
petition to set child support in June 2012. Mother stated that she gave the child support
petition to her attorney and she ―never heard anything else about it.‖
12
Kathy Williams, the executive director of Court Appointed Special Advocates
(―CASA‖) in Robertson County, testified next. Ms. Williams testified that CASA was
appointed to investigate Makenzie‘s case in September 2012. Ms. Williams stated that
the parents‘ attorney gave her phone numbers and two addresses to use to reach the
parents, but that neither of the phone numbers worked. Ms. Williams visited Makenzie in
the Meltons‘ home, and Makenzie was very well taken care of and seemed to be a very
―well-adjusted child.‖ On cross-examination, Ms. Williams admitted that she did not go
to the parents‘ home, nor did she try to send a letter to the addresses she had on hand.
James Porter was called by the parents‘ attorney to testify next. He stated that he
became a DCS caseworker for Makenzie in the fall of 2012. Mr. Porter testified that he
did not do anything to stop the visitation between Makenzie and her parents. Mr. Porter
observed a forensic interview of Makenzie and stated that Makenzie did not disclose any
occasions of physical or sexual abuse during that interview. Mr. Porter stated that he did
not investigate the allegations of abuse regarding Ashton because Ashton‘s case was
assigned to another county.
The Meltons‘ attorney questioned Father next. Father testified that he is employed
by Garland Nissan and makes over $100,000 per year and that he made over $100,000 in
2012. When asked whether he pays any child support for Makenzie, he stated, ―I‘m not
ordered any child support,‖ and later answered that he had not given any financial
support to the Meltons for their care of Makenzie. Then Father stated that, ―[t]he support
I have given for Makenzie is that I‘ve spent probably close to $100,000 trying to regain
custody of my own child that was stolen from me.‖ Father stated that he has not
attempted to place Makenzie on his insurance coverage, but that she could ―be added
very easily.‖ Father testified that he did not have any contact with Makenzie from July
2012 until December 2013. Father stated that the Meltons ―were ordered to reunite them
with us, and they did not. It‘s not my place to call the Melton‘s when - - Every time that
we have any contact with them, something bad comes from it.‖ Father stated that he
never contacted Makenzie‘s pediatrician because he did not know who her pediatrician
was.
When examined by the guardian ad litem, Father stated that he was ready to meet
Makenzie‘s needs by regaining custody of her. Father stated that it was ―impossible‖ to
work with the Meltons to reunify him and Mother with Makenzie. Father denied ever
putting Makenize in the attic, ever tying her up with a rope, or ever doing anything that
was sexually inappropriate to or in front of Makenzie.
The parents‘ attorneys called Angela Warden, Mother‘s sister, to testify next. She
testified that from her observation, Mother and Makenzie had a ―really good‖ mother-
daughter relationship. On cross-examination, Ms. Warden stated that, since February
2012, she had been in the parents‘ home to witness visitation on two or three occasions.
13
Finally, Matthew Williams, Father‘s friend, was called to testify on behalf of the
parents. Mr. Williams testified that he had never witnessed any domestic violence
between the parents.
Trial Court‘s Order
The trial court entered an order on May 7, 2014, dismissing the Meltons‘ petition
to terminate for failure to prove the grounds for termination alleged. The trial court held
that Mother‘s and Father‘s failure to visit and support within the four-month period
preceding the filing of the petition to terminate was not willful. With respect to
abandonment by failure to visit, the court stated:
Although the Sumner County Juvenile Court enjoined the parties to work
together to reunite Makenzie and her parents, those efforts never worked
without conflict. The [parents] are not without blame, but once the juvenile
court had spoken, the Meltons had a duty to recognize that the parents‘
rights were paramount and that they shouldn‘t continue to assume the
parental role.
After July 30 of 2012, the Meltons started proceedings on multiple fronts to
terminate the [parents‘] right to visit and ultimately to terminate their
parental rights. Their pleadings contain a parade of horribles on the part of
the [parents], but as the proof has shown, the only significant change since
February 2012 was the fact that DCS had started a dependent and neglect
investigation concerning Ashton.
In March of 2013, the [parents] filed an answer to the petition to terminate
parental rights in Robertson County. They also counter-claimed for
custody and notified the Meltons that they were insisting on compliance
with the juvenile court‘s visitation order. In short order the case was
transferred to Davidson County, non-suited, and re-filed in this Court on
April 11. By April 19 the Meltons had obtained an ex parte order shutting
off the [parents‘] right to visit.
When discussing failure to support, the court stated:
The failure to pay anything toward support is another matter. The [parents‘]
excuses (not being ordered to pay support and their extraordinary legal
expenses) do not merit much consideration from this Court. ―In Tennessee,
biological parents are expected under the common law to understand, even
in the absence of a court order, that they have an obligation under the law to
support their children if they have the ability to do so.‖ Smith v. Gore, 728
S.W.2d 738 (Tenn. Ct. App. 1987). However, when parents do not have
14
custody of their children, the nature and extent of their duty may be defined
and controlled by external factors other than ability to support. ―In these
circumstances, the nature and extent of the duty to support may be based on
a court order defining the support obligation.‖ In re M.J.B., 140 S.W.3d
643, 655 (Tenn. Ct. App. 2004). The Court finds that because the [parents]
were visiting with Makenzie prior to July 31, 2012 under a plan to restore
custody to them and thereafter were actively seeking custody, they were
seeking to support her. The record also shows that the [parents] were
following the process of the Child Support Division of the District Attorney
in establishing any support that may have been due. There is no evidence
that they were not cooperating in that process. So under all the
circumstances of this case, the Court concludes that the failure to pay
support was not willful, either.
The Court, therefore, finds that the proof fails to show any ground for the
Court to terminate the [parents‘] parental rights.
With respect to severe abuse, the trial court stated that it ―does not believe that
Makenzie‘s stories of being locked in the attic and being tied up in the bathroom actually
happened‖ and the court found ―there is no proof of any exposure of Makenzie to abuse
or neglect that is likely to cause her great bodily harm or death.‖ In a footnote, the trial
court stated:
Under Tenn. Code Ann. § 36-1-113(g)(4) the Court can find severe child
abuse of a sibling as grounds for termination; however, any evidence heard
by the Court regarding Ashton was not sufficient to find that he was
subjected to severe abuse as defined in § 102, nor is there any order in the
record making such a finding.
The court further pointed out that the ―sole reason‖ the trial court provided for giving
primary custody to the Meltons in 2012 was the prevalence of domestic violence between
Mother and Father. The court stated that ―[t]he only proof of any violence between the
[biological parents] in the ensuing two-plus years is a recording of an angry shouting
match in December 2012.‖ Therefore, the court did not find clear and convincing
evidence that the conditions that led to the court‘s removal in February 2012 still persist.
The court concluded that ―the time has come to end the struggle over Makenzie‘s
custody‖ and ordered ―an immediate change of custody from the Meltons to her parents.‖
The court appointed a special master to assist with the transition and to ―ensure that
Makenzie‘s best interests will be kept in the court‘s purview.‖
On May 21, 2014, the parents filed a motion for attorney‘s fees pursuant to Tenn.
Code Ann. § 36-5-103(c), requesting $40,688.75 in fees and expenses. The parents also
15
filed a motion for discretionary costs, pursuant to Tenn. R. Civ. P. 54.04. By order
entered September 25, 2014, the trial court held that Tenn. Code Ann. § 36-5-103(c) does
not authorize the award of attorney‘s fees in this case. The court ruled that the parents
were entitled to $2,000 in discretionary costs pursuant to Tenn. R. Civ. P. 54.04.
The Meltons appeal, asserting the trial court erred in declining to terminate
Mother‘s and Father‘s parental rights. They assert there is clear and convincing evidence
to support of a finding of the grounds of persistence of conditions, severe abuse, and
abandonment. They further argue that the court committed reversible error in excluding
evidence of sibling abuse and in changing a custody order without conducting a best
interest analysis. Lastly, the parents assert the trial court erred in denying their request
for attorney‘s fees.
ANALYSIS
Parents have a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control of their own children. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896
S.W.2d 546, 547-48 (Tenn. 1995). While this right is fundamental, it is not absolute.
The State may interfere with parental rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250.
Our legislature has listed the grounds upon which termination proceedings may be
brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re
Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a
parent‘s rights may be terminated only where a statutory basis exists. Jones v. Garrett,
92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least 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
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). ―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 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, ―[e]vidence satisfying the clear and
convincing evidence standard establishes that the truth of the facts asserted is highly
probable.‖ In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
Appellate courts review the trial court‘s findings of fact in termination
proceedings de novo on the record and accord these findings a presumption of
16
correctness unless the evidence preponderates otherwise. 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. ―In light of the
heightened burden of proof in [termination] proceedings . . ., the reviewing court must
then make its own determination regarding whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, provide clear and convincing
evidence that supports all the elements of the termination claim.‖ In re Bernard T., 319
S.W.3d at 596-97. Proof of only one statutory ground is necessary to support a court‘s
termination of a parent‘s rights. In re Adoption of Angela E., 402 S.W.3d 636, 641
(Tenn. 2013); In re Valentine, 79 S.W.3d at 546. If a ground for termination is
established by clear and convincing evidence, the trial court conducts a best interests
analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498
(Tenn. Ct. App. 2005)).
A. Grounds for Termination: Persistence of Conditions
The Meltons assert that the record contains a preponderance of clear and
convincing evidence that the grounds of persistence of conditions exists. Although not
raised as an issue by either party on appeal, we will consider, as a threshold matter,
whether Tenn. Code Ann. § 36-1-113(g)(3), which is referred to as ―persistence of
conditions‖ can serve as a ground for terminating Mother and Father‘s parental rights to
Makenzie. See In re Audrey S., 182 S.W.3d at 871 (Tenn. Ct. App. 2005). Under Tenn.
Code Ann. § 36-1-113(g)(3), parental rights may be terminated where:
The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in
all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child‘s safe return to the
care of the parent or parents or a guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child‘s chances of early integration into a safe, stable
and permanent home[.]
In In re Audrey S., 182 S.W.3d at 874, this Court opined that ―Tenn. Code Ann. §
36-1-113(g)(3) applies as a ground for termination of parental rights only where the prior
court order removing the child from the parent‘s home was based on a judicial finding of
dependency, neglect, or abuse.‖ See also In re Alysia S., No. M2013-02596-COA-R3-
17
PT, 2014 WL 7204406, at *28 (Tenn. Ct. App. Dec. 17, 2014). The prior order at issue
in this case is the February 1, 2012 order naming the Meltons as Makenzie‘s primary
residential parents. There is nothing in that order adjudicating Makenzie dependent or
neglected.6 Moreover, with respect to abuse, the order specifically states, ―[t]he Court
has serious concerns that there were bruises on the children, especially Ashton L[.], but
there was no proof that the parents have abused the children.‖ The February 2012 order
does not contain judicial findings of dependency, neglect, or abuse. Therefore, Tenn.
Code Ann. § 36-1-113(g)(3) may not be considered as a potential ground for termination
of the parents‘ rights to Makenzie. Our holding in this regard pretermits our
consideration of the Meltons‘ arguments regarding the evidence of persistence of
conditions.
B. Grounds for Termination: Severe Abuse
A court may terminate parental rights when it finds, by clear and convincing
evidence, that:
The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against the child who is
the subject of the petition or against any sibling or half-sibling of such
6
At the hearing on March 4, 2013, counsel for the Meltons clarified that the February 1, 2012 order did
not adjudicate Makenzie dependent and neglected in the following colloquy with the court:
THE COURT: -- as part of these preliminary matters, I think, are we concerned with
anything in this case that goes back beyond the judge in Sumner County‘s order, which I
think was February of 2012?
MR. PARSLEY: Judge, I believe by way of history that that may be helpful to The Court,
because --
THE COURT: I mean, he found that she was dependent and neglected.
MR. PARSLEY: I‘m sorry?
THE COURT: She -- He found that she was dependent and neglected.
MR. PARSLEY: No, Your Honor –
THE COURT: Well –
MR. PARSLEY: -- I don‘t believe Judge Brown did.
THE COURT: Okay.
MR. PARSLEY: And that‘s part of why we need this history if -- from a review of Judge
Brown‘s order, he had some serious concerns as relates to the parents. But he did not go
and say ―I find them dependent and neglected.‖
THE COURT: So -- But he left them in the custody of the Melton -- left her in the
custody of the Meltons.
MR. PARSLEY: That is correct, Your Honor.
18
child, or any other child residing temporarily or permanently in the home of
such parent or guardian[.]
Tenn. Code Ann. § 36-1-113(g)(4). ―Severe child abuse‖ is defined, in pertinent part, by
Tenn. Code Ann. § 37-1-102(b)(21)(A)(i) as:
The knowing exposure of a child to or the knowing failure to protect a child
from abuse or neglect that is likely to cause serious bodily injury or death
and the knowing use of force on a child that is likely to cause serious bodily
injury or death[.]
i. Notice
As an initial matter, the parents‘ contend that the Meltons‘ petition did not allege
severe abuse as a ground for termination. The parents assert that the Meltons‘ failure to
specifically plead allegations of severe abuse did not provide them adequate notice of the
grounds for termination sought against them.
With respect to abuse, the April 11, 2013 petition to terminate parental rights
alleged, in relevant part, the following:
21. Upon investigation by the Department of Children‘s Services and
subsequent Emergency Petitions, Magistrate Carlton Lewis of the Davidson
County Juvenile Court has terminated all of the respondents‘ visitation with
the child‘s sibling Ashton L[.] finding it was not in the minor child‘s best
interest to have any contact with the respondents.
22. The minor child was present and a witness to the physical and mental
abuse of her sibling Ashton L[.]
23. In addition to Ashton L[.]‘s abuse, this minor child has been a victim of
the respondents‘ mental and physical abuse.
24. Attached to this petition as a collective exhibit are letters from the
child‘s pediatrician and therapist stating that they do not recommend that
the children be returned to the parents.
...
26. For all the foregoing reasons, Petitioners aver that it is in the best
interest of the child pursuant to T.C.A. 36-1-113 and the public that any and
all parental rights that Adam and Ashley E[.] may hold to Makenzie L[.], be
forever terminated and that the complete custody, control and guardianship
of said child be awarded to the petitioners.
19
When handling preliminary matters prior to the beginning of trial, the trial court stated:
[A]lthough it‘s not pled very specifically, the court does find that the
ground in the petition is severe child abuse. . . . [I]t seems to me that that‘s
what we are here on is abandonment and persistence of conditions and
severe child abuse, all of which occurred after Judge Brown‘s initial order.
This Court has previously discussed the importance of strictly adhering to
procedural requirements in termination of parental rights cases. See In re Johnny K. F.,
No. E2012-02700-COA-R3-PT, 2013 WL 4679269, at *7 (Tenn. Ct. App. Aug. 27,
2013); Weidman v. Chambers, No. M2007-02106-COA-R3-PT, 2008 WL 2331037, at *6
(Tenn. Ct. App. June 3, 2008). ―Providing notice of the issues to be tried is considered a
fundamental component of due process.‖ In re Landon H., No. M2011-00737-COA-R3-
PT, 2012 WL 113659, at *4 (Tenn. Ct. App. Jan. 11, 2012) (citing In re W.B. IV., No.
M2004-00999-COA-R3-PT, 2005 WL 1021618, at *13 (Tenn. Ct. App. Apr. 29, 2005)).
Therefore, ―[a] trial court cannot terminate parental rights based on a ground that is not
alleged in the complaint.‖ In re Tristyn K., No. E2010-00109-COA-R3-PT, 2010 WL
2867179, at *5 (Tenn. Ct. App. July 22, 2010).
Although the petition is not a model of clarity with regard to the ground of severe
abuse, we have reviewed the record and agree with the trial court that the ground of
severe abuse, as defined by Tenn. Code Ann. § 36-1-113(g)(4), was pled in the Meltons‘
April 2013 petition to terminate parental rights. Moreover, the trial court went to great
lengths to clarify the grounds for termination prior to the beginning of the trial, and there
was no doubt that one of the grounds the Meltons were pursuing was a theory of severe
abuse. Therefore, we find that the parents had adequate notice regarding the grounds of
severe abuse.
ii. Evidence of sibling abuse
Next, we consider the Meltons‘ assertion that the trial court erred in failing to
allow evidence of the parents‘ alleged abuse of Ashton, Makenzie‘s younger brother, to
support the termination of their rights to Makenzie.
The trial court ruled on several occasions throughout the trial that ―the abuse of
Ashton is not relevant to this proceeding.‖ For example, during the testimony of Dr.
Dundon, Makenzie‘s and Ashton‘s treating pediatrician, the court disallowed evidence of
Dr. Dundon‘s observation of Ashton at a physical exam. The court also sustained an
objection to the introduction of a photograph of Ashton‘s injurires. Next, Ms. Melton
attempted to discuss injuries to Ashton, and following an objection by the parents‘
counsel, she was directed not to testify regarding his injuries. Again, during the
testimony of Patricia Sparks, the court sustained an objection to Ms. Sparks‘s testimony
regarding Ashton‘s injuries.
20
We disagree with the trial court‘s position that the abuse of Ashton is ―not
relevant‖ to the proceeding involving Makenzie. Tennessee Code Annotated section 36-
1-113(g)(4) states that parental rights may be terminated based on a finding by clear and
convincing evidence that the parent has ―committed severe child abuse against the child
who is the subject of the petition or against any sibling or half-sibling of such child, or
any other child residing temporarily or permanently in the home of such parent or
guardian[.]‖ (Emphasis added). Therefore, evidence regarding the injuries Ashton
allegedly sustained at the hands of his parents is properly considered in an analysis of
whether Mother‘s and Father‘s parental rights as to Makenzie should be terminated
pursuant to Tenn. Code Ann. § 36-1-113(g)(4). See In re Eric J.P., No. M2012-02082-
COA-R3-PT, 2013 WL 1788547, at *3-4 (Tenn. Ct. App. Apr. 24, 2013) (finding
grounds of severe abuse existed where the parents were found to have committed severe
abuse of a sibling or half-sibling). The trial court cited Tenn. Code Ann. § 36-1-
113(g)(4) in a footnote and stated, ―any evidence heard by the Court regarding Ashton
was not sufficient to find that he was subjected to severe abuse as defined in § 102, nor is
there any order in the record making such a finding.‖ However, the trial court refused to
hear much of the evidence that was proffered regarding the abuse of Ashton; thus, the
trial court did not get the full picture of the extent of abuse, if any, that transpired with
respect to Makenzie‘s sibling.7
It was error for the trial court to refuse to allow witnesses to testify regarding
abuse Ashton allegedly endured because such evidence was relevant to the question of
whether the parents‘ rights to Makenzie could be terminated under Tenn. Code Ann. §
36-1-113(g)(4). Therefore, we must remand the case for a determination of whether the
ground of severe abuse, as defined by Tenn. Code Ann. § 36-1-113(g)(4), applies in this
case.
C. Grounds for Termination: Abandonment
A parent‘s rights may be terminated upon proof by clear and convincing evidence
that the parent ―abandoned‖ the child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1).
―Abandonment,‖ for purposes of terminating a parent‘s rights, is defined to include the
following:
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 or parents. . . , that the parent or parents. . . either have willfully
7
The parents have appended to their brief, an order allegedly signed by the trial court on July 1, 2014,
which disposes of a dependency and neglect petition filed by DCS regarding Ashton. This order is not
part of the official technical record on appeal; therefore, we cannot consider it. See State v. Smotherman,
201 S.W.3d 657, 660 (Tenn. 2006) (―The appellate record provides the boundaries of an appellate court‘s
review. . . . An appellate court may consider only evidence contained in the appellate record.‖).
21
failed to visit or have willfully failed to support or have willfully failed to
make reasonable payments toward the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i). Willfulness is a critical element of the definition
of abandonment. Willful, in this context, means 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 at 640 (citing In re Audrey S.,
182 S.W.3d at 864); see In re Audrey S., 182 S.W.3d at 863-64 (an individual acts
willfully if he or she knows what he is doing and has the intention to do what he or she is
doing). The ―[w]illfulness of a parent‘s conduct depends on the parent‘s intent, and
intent is seldom capable of direct proof.‖ In re Alysia S., 2014 WL 7204406, at *22
(citing In re Audrey S., 182 S.W.3d at 864). Thus, the trier-of-fact must infer intent from
circumstantial evidence, such as the parents‘ conduct. Id. ―Because testimony may be
critical to the determination of whether a parent‘s conduct was willful, trial courts are
best situated to make a determination of willfulness.‖ Id.
―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 at 640 (citing In re Adoption of
A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). A court will not find a parent has
abandoned his or her child if his or her failure to support or to visit the child is outside
his or her control. Id.
The trial court ruled that the parents‘ failure to visit or support Makenzie within
the four-month period preceding the filing of the petition was not willful. The petition at
issue was filed on April 11, 2013; thus, the relevant time period is December 10, 2012 to
April 10, 2013. It is undisputed that neither Mother nor Father visited or financially
supported Makenzie during this time.
i. Willful failure to visit
In support of its determination that the parents‘ failure to visit Makenzie was not
willful, the trial court noted that the Meltons did not comply with the juvenile court‘s
order to reunite the family because ―they were told by DCS that the order restricting
visits with the [parents‘] son applied to Makenzie.‖ The court also cited In re Adoption
of A.M.H., 215 S.W.3d 793 (Tenn. 2007), to support its holding.
In In re Adoption of A.M.H., this Court was presented with a situation where the
parents of A.M.H. ―actively pursued legal proceedings to regain custody of A.M.H.
during the ‗abandonment‘ period but failed to visit for a period of four consecutive
months immediately prior to the filing of the petition for termination of parental rights.‖
In re Adoption of A.M.H., 215 S.W.3d at 810. The Court held that where ―the parents‘
visits with their child have resulted in enmity between the parties and where the parents
22
redirect their efforts at maintaining a parent-child relationship to the courts the evidence
does not support a ‗willful failure to visit‘ as a ground for abandonment.‖ Id.
In this case, the parents and the Meltons testified that a DCS caseworker notified
them in August 2012 that visitation between Makenzie and the parents should cease. On
February 11, 2013, the Meltons filed a Petition to Terminate Parental Rights and for
Adoption of Minor Children in the Robertson County Chancery Court. On March 14,
2013, the parents filed an Answer and Counterclaim for Paternity and Custody in which
they asserted they were ―entitled to immediate custody‖ of Makenzie. The Meltons
voluntarily dismissed the petition in Robertson County and filed a petition for termination
of parental rights on April 11, 2013, in Davidson County Juvenile Court. On April 12,
2013, Mother and Father filed a Motion to Enforce Visitation Order, seeking to
recommence visitation with Makenzie.
While the parents‘ efforts to reconnect with Makenzie were not as extensive as
those of the parents in In re A.M.H., the record does show that Mother and Father turned
to the court in an effort to maintain a parent-child relationship with Makenzie by filing a
counter-petition for custody in March 2013. Cf. id. at 810-11. Moreover, like the parties
in In re Adoption of A.M.H., testimony in this case was replete with examples of
―enmity‖ between the parents and the Meltons, and on March 12, 2013, the parents‘
attorney sent a letter to the Meltons attempting to reinstate visitation with Makenzie in
accordance with the February 2012 order. Thus, the parents were seeking to enforce the
February 2012 order during the last month of the relevant four-month time period. In
addition, and most importantly, both parties testified that they were asked by DCS to
discontinue visitation in August 2012. In light of DCS‘s request that the parties
discontinue visitation, the hostility between the parties, and the fact that Mother and
Father re-directed their efforts at maintaining a parent-child relationship to the Robertson
County Chancery Court by filing a counter-petition for custody within the four months
preceding the filing of the petition to terminate, we uphold the trial court‘s determination
that the parents‘ failure to visit was not willful.
ii. Willful failure to support
In determining that the parents‘ failure to support Makenzie was not willful, the
trial court stated:
The failure to pay anything toward support is another matter. The E[.]s‘
excuses (not being ordered to pay support and their extraordinary legal
expenses) do not merit much consideration from this Court. ―In Tennessee,
biological parents are expected under the common law to understand, even
in the absence of a court order, that they have an obligation under the law to
support their children if they have the ability to do so.‖ Smith v. Gore, 728
S.W.2d 738 (Tenn. Ct. App. 1987). However, when parents do not have
23
custody of their children, the nature and extent of their duty may be defined
and controlled by external factors other than ability to support. ―In these
circumstances, the nature and extent of the duty to support may be based on
a court order defining the support obligation.‖ In re MJ.B., 140 S.W.3d
643, at 655 (Tenn. Ct. App. 2004). The Court finds that because the E[.]s
were visiting with Makenzie prior to July 31, 2012 under a plan to restore
custody to them and thereafter were actively seeking custody, they were
seeking to support her. The record also shows that the E[.]s were following
the process of the Child Support Division of the District Attorney in
establishing any support that may have been due. There is no evidence that
they were not cooperating in that process. So under all the circumstances of
this case, the Court concludes that the failure to pay support was not
willful, either.
There is no dispute that the parents failed to pay any support for Makenzie during
the relevant four-month time period. While there was not extensive testimony regarding
the parents‘ household expenses, Father testified that he earned ―over $100,000‖ per year
working for a car dealership and is capable of financially supporting Makenzie. Mother
also testified that she and Father paid approximately $70,000 in legal expenses to ―get
Makenzie back.‖
The trial court correctly noted that parents are presumed to know they have a legal
obligation to support their children. See Tenn. Code Ann. § 36-1-102(1)(H). Moreover,
there is a well-settled rule in Tennessee that:
biological parents must, as a general matter, support their children until
they reach the age of majority. . . . The parent‘s obligation to support, as
well as the child‘s right to support, exist regardless of whether a court order
exists, and regardless of whether the parents were ever married.
State ex rel. Hayes v. Carter, No. W2005-02136-COA-R3-JV, 2006 WL 2002577, at *2
(Tenn. Ct. App. July 6, 2006) (citing Tenn. Code Ann. § 34-1-102(a); Smith v. Gore, 728
S.W.2d 738, 750 (Tenn. 1987)); see also State Dep’t of Human Servs. v. Manier, No.
01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct. App. Oct. 31, 1997) (―We
dare say that the support of one‘s children should not be conditioned upon whether one
has been placed under a court order to do so.‖). However, we must consider the entire
―constellation of facts‖ when making a determination of whether a parent‘s failure to
financially support their child was willful. In re Kaleb N.F., No. M2012-00881-COA-
R3-PT, 2013 WL 1087561, at *23 (Tenn. Ct. App. Mar. 12, 2013).
In this case, the court primarily relied on In re M.J.B., 140 S.W.3d 643 (Tenn. Ct.
App. 2004), to support its conclusion that the parents‘ failure to pay support was not
willful. The mother in In re M.J.B. brought her children to a community service agency
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and requested that the children be placed in the custody of DCS because they were
―malnourished and essentially naked.‖ In re M.J.B., 140 S.W.3d at 646. Eventually,
DCS filed a petition to terminate the mother‘s rights to her children on the ground of,
inter alia, abandonment by willful failure to support. Id. at 649. The trial court
terminated the mother‘s rights on that basis, but this Court reversed the trial court, finding
that her failure to support was not willful. Id. at 655. This Court stated:
All parents have a duty to support their children. However, when parents
no longer have custody of their children, the nature and extent of their duty
may be defined and controlled by external factors other than the parents‘
ability to support. In these circumstances, the nature and extent of the duty
to support may be based on a court order defining the support obligation.
When a child has been placed in the Department‘s custody in a dependent-
neglect proceeding, a parent‘s support obligation may also be defined by
the permanency plan for the child.
Id. (footnote omitted). The Court went on to state that there was no indication that the
mother was ―aware that she was still obligated to support her children financially after
they were placed in the Department‘s custody.‖ Id. In addition, the Court held that
mother had insufficient income to support herself or her children because she had to rely
on others for financial support. Id. The Court ruled that DCS failed to carry its burden to
prove that the mother willfully failed to support her children. Id.
The present case is distinguishable from In re M.J.B. in two primary respects.
First, the child in this case was not in the custody of the State; rather, Makenzie‘s paternal
great aunt and uncle were her primary residential parents. The court in In re M.J.B.
emphasized that the mother was not aware that she was obligated to support her children
financially after they were placed in DCS custody. See Tenn. Code Ann. § 37-2-
403(a)(2) (requiring DCS to provide a ―statement of responsibility‖ to the parent of a
child in foster care giving specific notice of the definition of abandonment and that the
willful failure to support or to visit for four months can be used to terminate the parent‘s
rights). Tennessee Code Annotated section 37-2-403(a)(2) is not applicable where the
child is placed with a family member. In re Alysia, 2014 WL 7204406, at *3 n.2; but cf.
In re K.C., Jr., No. M2005-00633-COA-R3-PT, 2005 WL 2453877, at *11 (Tenn. Ct.
App. Oct. 4, 2005) (considering the fact that a mother did not have notice that her rights
could be terminated for her failure to support her child who was in the custody of her
aunt (not DCS) as a factor in concluding that her rights should not be terminated on that
basis). Second, unlike the mother in In re M.J.B., the evidence showed that the parents
in this case were financially capable of supporting Makenzie. In In re M.J.B., the mother
―had no marketable skills,‖ she had jobs that did not provide sufficient income to support
herself, and she had attempted to meet her financial obligations by selling plasma twice a
week. In re M.J.B., 140 S.W.3d at 655. Here, Father testified that he made at least
25
$100,000 per year as a salesman and had a nice home in which he and Mother could raise
their children. The trial court‘s reliance on In re M.J.B. was misplaced.
The trial court elaborated on its reasoning for determining the parents‘ failure to
support was not willful by stating, ―because the E[.]s were visiting with Makenzie prior
to July 31, 2012 under a plan to restore custody to them and thereafter were actively
seeking custody, they were seeking to support her.‖ We have found no statutory
authority or caselaw to support the trial court‘s conclusion based on these facts. Parents
who are ―actively seeking custody‖ through the judicial process are not providing support
for their children as contemplated by Tenn. Code Ann. § 36-1-102(1)(A)(i). In their
brief, parents request this Court to ―make an affirmative finding that when parents are
compelled to redirect their finances to seek legal representation to protect their right to
parent their child, the abandonment by failure to pay financial support is not grounds for
termination.‖ We reject the parents‘ invitation to so hold.
Finally, the trial court stated, ―The record also shows that the E[.]s were following
the process of the Child Support Division of the District Attorney in establishing any
support that may have been due. There is no evidence that they were not cooperating in
that process.‖ We have reviewed the record and find that the extent to which the parents
were cooperating with the Child Support Division in setting child support is unclear. For
example, the record shows that the Meltons served a summons with a ―Petition to Set
Support‖ on Mother in June 2012. Regarding this petition, Mother testified as follows:
Q. Ms. E., do you recall being served with a petition to set child support?
A. When?
Q. Back in June of 2012.
A. I think so, yes.
...
Q. And you just - - you just testified that you were served with a child
support document in June of 2012?
A. Yes.
Q. Did you ever go to child support court?
A. I gave it to my attorney, and he said ―I‘ll take care of it,‖ and I never
heard anything else about it.
Q. Okay. Never - - never tried to figure out down the road what had
happened to that?
A. I had asked David and he said ―don‘t worry about it.‖
When Mother was questioned about whether she felt she had an obligation to pay child
support or provide clothing or food for Makenzie, Mother answered as follows:
A. I have not been ordered to pay child support.
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Q. I understand that. But you don‘t think that you have any obligation to
pay for any of those things for your daughter?
A. They‘ve never asked.
Q. That‘s not my question, ma‘am. I‘m saying you, personally, regardless
of where she‘s staying or who has custody, you don‘t think you have any
obligation to pay for your child?
A. Uhm…
Q. I take that as a ―no‖?
A. You know, there‘s just so many different ways to look at that. That‘s
my answer.
As we have previously stated, the law is clear that parents have a duty to support
their children even absent a court order requiring them to do so. State v. Wilson, 132
S.W.3d 340, 343 (Tenn. 2004). Thus, even if the parents ―were following the process of
the Child Support Division of the District Attorney in establishing any support that may
have been due,‖ as the trial court stated, this fact alone does not justify a determination
that their failure to support was not willful, nor does it absolve them from the
responsibility to support their child financially while the matter was pending a final
resolution.
―As a question of law, the trial court‘s ruling that the facts of this case sufficiently
support the termination ground of willful abandonment [is] reviewed de novo with no
presumption of correctness.‖ In re Adoption of A.M.H., 215 S.W.3d at 810. ―To prove
the ground of abandonment, a petitioner must 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 at 640. It is undisputed that the parents failed to support Makenzie during the
four months preceding the filing of the petition. In addition to failing to provide
monetary support for Makenzie, the parents failed to provide any other type of support
for the child. Although the statute requires us to confine our examination to the four
months prior to the filing of the petition to terminate, when we consider the ―entire
constellation of facts,‖ we note that the parents never paid the Meltons any form of
support (other than one instance approximately four years prior to the hearing in this
case) from the time Makenzie came into their care in 2008 until the final hearing in this
matter in 2014. The evidence shows that the parents had the capacity to pay for the
support of Makenzie during the relevant time period—Father made over $100,000 per
year in 2012 and 2013. Finally, we do not find the absence of a child support order or the
parents‘ minimal cooperation with the Child Support Division of the District Attorney to
be a justifiable excuse for their not providing support to Makenzie. Therefore, we hold
that the evidence in this case clearly and convincingly supports a finding that the parents
willfully abandoned Makenzie within the meaning of Tenn. Code Ann. § 36-1-
102(1)(A)(i) by willfully failing to support or make reasonable payments toward the
27
support of Makenzie. Accordingly, we reverse the trial court‘s finding that this ground
for termination was not proven by clear and convincing evidence.
D. Best Interest
In order 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) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).
―[I]t cannot be presumed that the existence of grounds necessarily leads to the conclusion
that termination is warranted.‖ In re M.L.P., No. W2007-01278-COA-R3-PT, 2008 WL
933086, at *12 (Tenn. Ct. App. Apr. 8, 2008); see e.g., In re C.E.P., No. E2003-02410-
COA-R3-PT, 2004 WL 2191040, at *6 (Tenn. Ct. App. Sept. 29, 2004) (finding
termination was not in the child‘s best interest even though grounds for termination
existed).
Here, the trial court never reached the issue of whether termination of the parents‘
rights would be in Makenzie‘s best interest because the court found that grounds for
termination did not exist. Because we reverse the court‘s conclusion that the parents did
not willfully abandon Makenzie by failing to support her, we must remand the case to the
trial court for a determination, pursuant to Tenn. Code Ann. § 36-1-113(i), of whether
termination of the parents‘ rights is in the best interest of the child. See In re M.L.P.,
2008 WL 933086, at *13 (finding grounds for termination and remanding the case to the
trial court for a best interest determination).
E. Attorney‘s Fees
Finally, we consider the parents‘ argument that the juvenile court erred in denying
their request for attorney‘s fees. The determination of the appropriate amount of
attorney‘s fees to award, if any, is a matter generally left to the discretion of the trial
court. See Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011) (citing
Kline v. Eyrich, 69 S.W.3d 197, 203 (Tenn. 2002). However, in cases where the legal
justification of the award is at issue, this Court reviews the decision of the trial court de
novo with no presumption of correctness. Bryant v. Bryant, No. 01A01-9806-CV-00337,
1999 WL 43282, at *6 (Tenn. Ct. App. Feb. 1, 1999) (citing State Dep’t of Human Servs.
v. Shepherd, No. 89-78-II, 1989 WL 144019, at *1 (Tenn. Ct. App. Nov. 29, 1989)).
―[I]n the absence of a statute, contract, or other compelling equitable ground, a
trial court cannot compel a losing party to pay a prevailing party‘s legal expenses.
Bryant, 1999 WL 43282, at *6 (citing State ex rel. Orr v. Thomas, 585 S.W.2d 606, 607
(Tenn. 1979)). In this case, the parents requested fees pursuant to Tenn. Code Ann. § 36-
5-103(c), which states:
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The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
The trial court held that Tenn. Code Ann. § 36-5-103(c) was inapplicable to this
termination of parental rights proceeding and denied the motion for attorney‘s fees.
The court cited Bryant v. Bryant in support of its holding. In Bryant, this Court
determined that Tenn. Code Ann. § 36-5-103(c) does not apply in termination of parental
rights proceedings. Bryant, 1999 WL 43282, at *6; see also In re Nathaniel C.T., 447
S.W.3d 244, 247-48 (Tenn. Ct. App. 2014). The Meltons initiated this case by filing a
petition for termination of parental rights. Therefore, we find that Tenn. Code Ann. § 36-
5-103(c) does not provide a statutory basis for the award of attorney‘s fees in this
termination proceeding.8 We, therefore, affirm the trial court‘s order denying an award
of attorney‘s fees to the parents.
CONCLUSION
The trial court‘s order is affirmed in part and reversed in part. Because this Court
has found one ground for termination exists and that evidence relating to another ground
was improperly excluded, the case must be remanded to the trial court for a hearing on
whether the ground of abuse as defined by Tenn. Code Ann. § 36-1-113(g)(4), applies in
this case and whether the termination of Mother‘s and Father‘s parental rights is in the
best interest of Makenzie.
The unusual twist in this case is that the trial court returned Makenzie to the
custody of her parents when it found that there were no grounds for termination. We
have reversed that finding and remand for further hearing. The Meltons argue that the
trial court erred in returning the child to her parents, and the parents argue that the trial
court‘s earlier order of February 1, 2012 giving the child to the Meltons was invalid.
After much consideration, we decline to address this issue at this time because no
analysis of the best interest of the child has been conducted. If the trial court determines
that it is not in the child‘s best interest to terminate her parents‘ rights, then the trial court
is to hold a new hearing on the custody of the child. If the trial court determines that it is
in the child‘s best interest to terminate her parents‘ rights, then the trial court shall
8
We find the parents‘ equal protection arguments unavailing.
29
determine where to place the child. In either event, the trial court will make a new
determination regarding the custody of Makenzie in light of her best interest, and the Feb.
1, 2012 custody order as well as the May 7, 2014 custody order will be superseded.
Costs of the appeal are assessed equally between the parties.
_________________________
ANDY D. BENNETT, JUDGE
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