In Re: Karissa v. ( 2017 )

02/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 26, 2017 Session
IN RE: KARISSA V., ET AL.
Appeal from the Chancery Court for Roane County
No. 2014-AD-457 Frank V. Williams, III, Chancellor
No. E2016-00395-COA-R3-PT
This appeal concerns the termination of parental rights. Glenn V. (“Grandfather”) filed a
petition in the Chancery Court for Roane County (“the Trial Court”) seeking to terminate
the parental rights of his son, Christopher V. (“Father”), and Makara G. (“Mother”) to
their minor children, Karissa and Makilee (“the Children”). After a trial, the Trial Court
terminated Father’s and Mother’s parental rights on the grounds of abandonment by
failure to support and failure to visit. The Trial Court also granted Grandfather’s motion
for adoption. Father and Mother filed appeals to this Court. We, inter alia, reverse the
ground of failure to visit with respect to both parents. We also reverse the ground of
failure to support with respect to Mother. However, we affirm the ground of failure to
support with respect to Father. We find further that termination of Father’s parental
rights is in the Children’s best interest. We affirm, in part, and reverse, in part, the
judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.
Zachariah Stansell, Knoxville, Tennessee, for the appellant, Christopher V.
Mark N. Foster, Rockwood, Tennessee, for the appellant, Makara G.
Martin W. Cash, Jr., Kingston, Tennessee, for the appellee, Glenn V.
OPINION
Background
This case concerns the termination of Father’s and Mother’s parental rights to the
Children, Karissa and Makilee, born 2011 and 2013 respectively. Both of the Children
were born exposed to drugs. The Children were placed in the temporary custody of
Father’s father, Grandfather. On December 5, 2014, Grandfather filed a petition seeking
to terminate Father’s and Mother’s parental rights to the Children and for adoption of the
Children. In July 2015, Grandfather filed an amended petition to terminate parental
rights.
Mother, upon a finding of indigency, was appointed counsel. In a July 2015
motion, Mother’s counsel requested that she be permitted to withdraw from the case
citing “irreconcilable differences.” Mother’s counsel expressed frustration as shown in
her billing records at Mother’s alleged failure to communicate with her. The Trial Court,
however, never entered an order disposing of the motion to withdraw. Mother’s counsel
texted Mother in the lead-up to trial. A month or so before trial, Mother’s counsel
attempted to call Mother and left a message. Mother did not appear at the February 2016
trial. Mother’s counsel elected to proceed with the case despite Mother’s absence.
Grandfather testified at trial. Grandfather, 45, was a concrete finisher by trade and
a small business owner. Grandfather testified that he had taken custody of the Children
via court order. Grandfather stated that he kept a detailed visitation log for Mother’s
visits. Grandfather proceeded to recount the dates Mother missed visitation in the
relevant four-month period prior to the filing of the petition, although there was
confusion in the testimony as to whether Mother missed 17 visits or visited 17 times.
Grandfather testified that Mother had paid him no child support from August 2014
onward. Regarding Father, Grandfather kept no detailed visitation log, but stated that
Father visited “[n]ot as much as . . . the Court ordered.” Grandfather stated that when
Father did visit he mostly texted and paid little attention to the Children. Grandfather
stated that Father paid him no child support, and that, in fact, Grandfather had paid
certain bills for Father. Grandfather stated that Father now was living in an apartment
with a girlfriend. Grandfather also testified to an incident when he found Father sticking
a needle in his arm.
Grandfather testified that Father worked for him periodically over the years.
Grandfather testified:
Q. When did Chris work for you?
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A. Well, he just works periodically. I mean, he’s -- I mean, I couldn’t call
him really a steady employee.
Q. Why not?
A. You know, he’s -- throughout his whole life, whenever he’s turned 18,
he’s could have had a job, and he’s failed to do so.
Q. So when has he worked for you?
A. Well, periodically throughout his -- until he was 17, 18, until he got out
of school. I mean, he --
Q. So in 2014, when did he work for you? Rough dates or exact.
A. I think -- 2014, I don’t think he worked much with me at all.
Q. What about 2013?
A. Not much. Very, very, very little at all.
Q. 2012?
A. Very little at all.
Q. 2011?
A. Very little at all.
Q. 2015?
A. He’s picked up to -- I could say probably three out of -- days a week.
Q. Every week?
A. Well, no. This is ‘16. I’m sorry, I’ve got my years mixed up. I’d say
probably -- well, I’d really have to look at my records. Probably I think I
sent him some tax thing last year, 2015, he might have made $2,300.00.
Let’s do it that way. That way I can remember that.
Q. The tax thing you sent him for the year before that, was it more or less?
A. I think it was less.
Q. The reason why I ask is that we had multiple days of hearings in the
lower Juvenile Court, do you remember those?
A. Yes.
Q. And every time we had those, you testified that he was working for you
at that time, so that’s why I’m asking about when was he working, since
you said that he would work with you some. But every time we’ve been in
court before, you said he was working with you. Was he only working
around the court dates, was he working between the court dates?
A. Well, it seemed like every time we had to go to court, he would work
more.
Q. And that’s your perception of it?
A. Yeah, that’s pretty much.
***
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Q. So as we’re sitting here today, you can’t really say when Chris has
worked with you like how many days he’s worked with you the past several
years?
A. No, not without looking at something. But, no, I mean, I could go back
to the records. I know last year, like his tax, because I do them, and I have
the tax lady do them, and I mail them out and I look at them, you know. He
might have made a couple thousand dollars last year. He gets $10.00 and
$12.00 an hour, so, you know, you can figure that out on your finger, I
guess, how much money that is, how much he’s worked.
Q. Has that been consistent through the past nine years?
A. Yes.
Q. Because you said he’s been working since he was 17. You said you
believe he’s 26?
A. Yes.
Q. That would be nine years?
A. Yeah.
Q. And so you think he’s worked enough to make a couple thousand dollars
every year since he was 17?
A. Yes, pretty close, yeah.
Grandfather testified that there was no court order establishing Father’s child support.
Grandfather stated further that prior to the filing of his petition he never asked Father to
pay child support. In response to a question about visitation, Grandfather agreed that
Father and Mother visited “substantially” although “not as much as they were allowed.”
When asked why he filed a petition to terminate parental rights, Grandfather testified:
Because the parents ain’t getting no better at all. And I mean, we keep
getting, like I say, evidence and everything that looks toward they’re not
getting well. And again, these kids need love, safe environmental home that
they can grow up and be children and have something in life whenever they
grow up and get older.
Denee Foisy, a social worker who had worked with Mother, testified as follows:
Q. In terms of parenting skills, do you consider somebody who has been in
and out of jail a proper parent?
A. All I could tell you is on what I witnessed, because I can’t give
professional advice on whether or not I think she should be a parent or not
for those children. But all I can tell you is what I observed. And what I
observed, she looked really good from what I saw. She didn’t need any
parenting.
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Robert T., an acquaintance of Mother’s, testified. Robert T., wishing to help
Mother given her difficult work and family circumstances, had provided Mother with a
cell phone to use and planned to hire her as a secretary. Robert T. stated that he told
Mother that she was not to engage in any illegal activity on the phone. Robert T. testified
that Mother nevertheless stole about $300 from him. Robert T. retrieved the phone from
Mother. At some point, the police confiscated the phone. Robert T. testified to text
messages he found on the phone that Mother used regarding drugs sales, including “30 is
750. That covers the cost in full. The rest should be split. I’m tired of being given the
short end all the time.” Another text read: “OK then you owe me two pills from who
ever takes you then. You know we sell 40 of them at $20 each to 1 person the second we
get them, to get our $ back.” Mother’s counsel objected strenuously to admitting the text
messages. Mother’s counsel argued that they were not properly authenticated, and that,
for all anyone knew, Robert T. sent them himself. Mother’s counsel pointed out that
Mother was not present to refute Robert T.’s account, to which the Trial Court stated “it
would behoove [Mother] to show up to Court,” Robert T. testified that the messages had
originally been deleted, but that “the law” had pulled them back up. Robert T. testified:
Q. Now, when did you -- I think you testified that you retrieved the cell
phone. What were the circumstances when you retrieved the cell phone?
A. I told you, the phone alerted me that the data was going over and I
confronted her about it and she tried to deny it. And I said, well, you know,
part of it was letting me look at the phone. She said, well, come and get it.
And then I come up there and got it and she had deleted everything off of it.
Q. She deleted everything?
A. (Witness nods head.)
Q. And when exactly, it’s an approximation, you said around August 11th?
A. 12th I think it was.
Q. And so all of her text messages were deleted?
A. Yeah. I got my phone set up to where I can go through my phone and
pull records from hers.
Q. And so you were able to pull up this August 10th text message?
A. It actually pulled everything up for August, period.
Q. And August 9th, correct?
A. (Witness nods head.)
Q. And those were the only text messages that you found on her phone?
A. No, they wasn’t on her phone. They were on mine. The law is the one
that pulled that stuff up.
Q. So you actually had control over her text message?
A. What are you getting at? Just ask me the question you’re going to ask
me.
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THE COURT: No, you just -- you’re answering. She’s asking, you answer.
THE WITNESS: Yes, sir.
Q. What made you decide to retrieve the telephone?
A. I told you, when the phone alerted me about the data message and I
confronted her about it and she said it wasn’t true, to come get the damn
thing.
Q. Does your carrier send you any type of written alert or do you have any
proof that you were alerted about --
A. It come over the phone.
Q. I’m sorry?
A. It’s through the phone. It’s Verizon.
Q. Do you have any billing statement from your carrier?
A. I can get it if that’s what you want.
Q. Well, I’m asking you if you have it today, sir?
A. No, ma’am. I wasn’t told to bring any of that.
Q. So she deleted all of the text messages except for the specific text
messages --
A. They were pulled back up on the telephone. How many times do I have
to say that? She deleted everything off the phone, phone numbers,
everything.
Q. And how were you able to retrieve those and not any others?
A. It pulled all of them up. They were all there. I didn’t go through them.
The law looked at them.
Q. I’m sorry?
A. When you all had access to the phone, you could see everything that was
on it.
Q. Yes, but the only ones that you specifically produced were those two
text messages --
A. I didn’t specifically produce them, they did.
Q. Mr. [T.], I’m saying, what other criminal activity text messages did you
pull up?
A. The drug activity.
Q. And where are they here today?
A. They’re right there. They’ve got copies of them. The law has got copies
of them. The Court’s got copies of them.
Q. We have one text message to a person named Kelly on August 10th and
we have one text message to Makara’s father on August 9th. Those are the
only two allegedly criminal activity text messages.
A. You all had the phone. Why didn’t you all bring it along?
Q. Why haven’t you been able to produce any additional text messages?
A. They were there. It wasn’t my job to bring them all.
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Q. So why didn’t you?
A. I’m not the one that done it, lady.
One of the recipients of a text, Clara P., testified that she did not recall receiving the text.
Father testified. Regarding work and visitation, Father stated:
Q. Were you getting your standard visitation during those months, August
through December of 2014?
A. Yeah, as long as I could get a ride over to his house or he would come
get me.
Q. Did you have a lot of problems getting there?
A. Yeah, sometimes.
***
Q. When you were working for your father, did you have an agreement
with him that he would take some money out of your check to help with the
kids?
A. It wasn’t not with the two kids he has. It’s with my other two I have with
Amber. He was keeping money out of my check so I could pay my child
support.
Q. He was helping you with the child support?
A. Yes, sir.
Q. Did he ever ask you for child support?
A. No, sir.
Q. Did you two ever talk about child support?
A. No, sir. But for the record, he said that I haven’t never bought anything
for the kids or anything like that. I have bought clothes, I have bought
shoes, and I bought milk on several occasions.
***
Q. You say you visit your kids when you go over to your dad’s before work
and you visit with your kids when you come home from work until you
have to go back home; is that true?
A. Or sometimes I’ll stay and he’ll take me home.
Q. Do you ever see your kids on the weekends?
A. Yes.
Q. How do you get there?
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A. Either I’ll get a ride, someone to drop me off, or he’ll come get me, and
then we go pick up my other two kids and I spend all day with them.
Q. You testified that -- or your dad testified that money is taken out of your
paycheck to give child support for the two kids that you had with Amber [];
is that correct?
A. Correct.
Q. Why don’t you pay child support to your dad for the two kids you had
with [Mother]?
A. Because he told me he didn’t need it. We’ve talked about it before.
Q. Are you aware that the obligation to pay child support is never ending
and that regardless of whether your dad wants it, you have the obligation to
pay child support?
A. Well, he pays me. If he wanted, he could take it out of my check.
In March 2016, the Trial Court entered an order terminating Mother’s and Father’s
parental rights to the Children on the grounds of willful failure to support and willful
failure to visit. The Trial Court also granted adoption of the Children to Grandfather.
The Trial Court found and held as follows:
THIS CAUSE came on to be heard on February 19, 2016 before the
Court on the Petition to Terminate Parental Rights and For Adoption of
Minor Child and the Supplemental Petition to Terminate Parental Rights
and For Adoption of Minor Child, and appearing before the Court were
counsel for all parties, the Guardian ad Litem, the Petitioner and his
witnesses, the Respondent [Father], and the Respondent [Mother’s]
witnesses. The Respondent [Mother] did not appear for trial. Following
receipt of testimony and exhibits, argument of counsel and upon review of
the entire record as a whole, the Court finds as follows:
1. The Petitioner is a resident of Roane County, Tennessee. He is the
paternal grandfather of both minor children Karissa [V.] and Makilee [G.].
He has custody of the minor children pursuant to Orders entered by the
Juvenile Court of Roane County, Tennessee.
2. The Petitioner is a suitable custodian of the children. The
requirement for homestudy and waiting period are hereby waived since the
Petitioner is related to the minor children.
3. All persons entitled to notice of these proceedings have been
served with process and were properly before this Court.
4. Based upon the clear and convincing proof presented at trial, the
Court finds that the parental rights of both Respondents to the minor
children are hereby terminated. The Respondents have abandoned the
minor children. The Court finds this to be a clear cut case. Abandonment
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has been shown by facts that existed during the four months preceding the
filing of the adoption petition, which was December 5, 2014. The Court
finds by clear and convincing evidence that there was virtually zero support
on the part of the biological parents. There was nothing coming from them
to support their children. The children were being supported by the
Petitioner.
The next issue is the lack of any effort to have contact with the
children, to visit them, or to communicate with them, or to have some
meaningful interaction with the children. Respondent [Father] was around
the Petitioner on occasions and just perhaps was around the children when
the Respondent [Mother] was not present. It is apparent to the Court that
the Respondents’ contact with the children came about only when it was
convenient for the Respondents to have contact with the children and it was
limited. The occasions when visitations occurred were perfunctory. The
Court finds that both Respondents were perfectly happy to let others,
particularly the Petitioner, carry the burden that they, by nature, were and
should have carried. The Respondents did this so that they could do as they
pleased. They could come and go, be with friends, engage in activities that
they wanted to engage in. They essentially were with the children only
when it suited them, which was not often and not as scheduled.
The Court has listened to the witnesses and everything the Court has
heard favored the Petitioner. The Petitioner did not interfere with
visitations. He has pursued this Petition because of the affection of a
grandparent for his grandchildren and is determined to do what he can to
save them.
Respondent [Mother] has not appeared before the Court today. The
Court has not had the opportunity to look at her. The Court has looked at
Respondent [Father] and sees no indication whatsoever that there is ever
going to be a day or a year in his life when he is ever going to have his feet
firmly planted on the ground, when he is ever going to be a responsible,
productive citizen and parent. He is not willing to get out and do what it
takes to produce more income so that someday he may have a home of his
own and his own car and his own place apart from his girlfriend and her
mother and her boyfriend. The Court finds Respondent [Father] to be
unable to function in the real world, convicted of selling and manufacturing
Schedule II narcotics and still on probation after four years for committing
a felony, a drug addict. And as the Court looked at him today, the Court
kept thinking he sure looks mighty subdued, mighty sedated, calm, and
unusually calm. He is facing a lawsuit depriving him of custody of his
children and he is so cool and calm. How did that happen?
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Respondent [Father] was ordered to take a hair follicle drug test
which he did not take. It is therefore up to him to show that he is clean, that
he has not taken any drugs. Further, because of his history, because of the
fact that he was into drugs, he was convicted of drug use, a crime, a felony,
he was convicted of activity that would be, if not interrupted, not stopped,
would be a substantial threat not only to his own life but to the lives of his
children. At least twice he has admitted using marijuana while on probation
which would be violation of his parole right there.
The argument was made that the Court cannot do anything to
Respondent [Mother] because there has to be a showing of willfulness on
her part. But if someone is into drugs they cannot make that claim. A
person who is into drugs the way these two respondents have been into
drugs, at some point, they become incapable of being believed in what they
say and the only thing that counts for anything is to show us a changed life,
no words, but a new life. The Court heard some potentially flattering words
from Denee Foisy, BSW about the Respondent [Mother], but then the Court
wondered where Respondent [Mother] was. If she has no concerns why is
she not here? Why did she abandon the Courtroom to her lawyer to go it
alone with her friends, others who apparently were willing to come to
testify about things she should have been if she is who counsel claims her
to be? Further, Respondent [Father] is not a victim. He may have been
somewhere back in time, but at some point you have to man up, you have
to take control and be a different person. Both Respondents have to change
their minds about who they are and the way they are going to live. And,
until they do that, they are not getting any better. Reviewing their drug use
the Court imputes willfulness to the Respondents on account of their abuse
of illegal drugs.
The Court does not doubt that the children love Respondent
[Mother]. The Petitioner has not interfered with anybody. The visitation has
been only token visitation, which as far as the Court is concerned, has been
meaningless because it does not indicate any sort of real parent type of
commitment to and affection to the children.
5. The Court further finds that it is in the children’s best interest for
the adoptions to occur. The Court finds no problems with Petitioner
[Grandfather]. He presents himself as perhaps a changed man himself,
because he has admitted to some things that he has done younger and
earlier in life. He runs his own business and hires multiple people, he
produces jobs and has a good home. He provides hope for these children.
6. The children were not brought into the State of Tennessee and
therefore there is no issue with compliance with the ICPC.
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7. This children’s adoptions are not subject to the provisions of the
Indian Child Welfare Act (ICWA), 25 U.S.C. section 1901 et. seq.
8. These children have not been the subject of an adoption decree in
a foreign country.
9. The Petitioner is a fit and proper person to have the care and
custody of the children.
10. The Petitioner is financially able to provide for the children.
11. This children are suitable for adoption and this adoption is in the
children’s best interest.
12. This Honorable Court approves the fees charged in this cause.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS
FOLLOWS:
1. The Respondent [Father’s] parental rights to the minor children
are hereby terminated.
2. The Respondent [Mother’s] parental rights to the minor children
are hereby terminated.
3. The prayer for adoption is hereby granted and the minor children
are hereby adopted by Petitioner [Grandfather].
4. Karissa [V.’s] name shall not be changed. Makilee [G.’s] name is
hereby changed to Makilee [V.].
5. The fees in connection with this cause are reasonable and
therefore approved retroactively.
6. Counsel for the Respondent [Father] is hereby granted leave to
withdraw and shall have no further legal responsibility in this matter.
Counsel for the Respondent [Mother] is hereby granted leave to withdraw
and shall have no further legal responsibility in this matter. Alvin Cohen
has been appointed as the Guardian ad Litem in this cause and is therefore
relieved of his duties herein.
7. The Court costs are hereby assessed against the Petitioner.
Mother and Father filed appeals to this Court.
Discussion
Though not stated exactly as such, Father raises the following issues on appeal: 1)
whether the Trial Court erred in finding the ground of failure to support; 2) whether the
Trial Court erred in finding the ground of failure to visit; 3) whether the Trial Court erred
in finding the ground of persistent conditions; and, 4) whether the Trial Court erred in
finding that termination was in the Children’s best interest. Mother raises her own issues
slightly reformulated by us as follows: 1) whether the Trial Court erred in permitting the
trial to proceed in Mother’s absence and whether Mother was denied effective assistance
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of counsel; 2) whether the Trial Court erred in finding the ground of failure to visit; 3)
whether the Trial Court erred in admitting certain text messages; 4) and, whether the
Trial Court erred in finding the ground of failure to support.
As our Supreme Court recently instructed:
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.1 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 of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
1
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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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 grounds2 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
2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,3 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
3
Tenn. Code Ann. § 36-1-113(i).
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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 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).
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). Our Supreme
Court, however, 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 at 525-26 (footnote omitted). As such, we review each of the grounds for
termination.
As pertinent, Tenn. Code Ann. § 36-1-113(g)(1) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
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Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2016).4
As pertinent to this appeal, Tenn. Code Ann. § 36-1-102 provides:
(1)(A) 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:
(i) 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 or the guardian or guardians of the child who
is the subject of the petition for termination of parental rights or
adoption, that the parent or parents or the guardian or guardians
either have willfully 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) (Supp. 2016).
Regarding failure to support, this Court has stated:
In a termination proceeding, the burden is not on a parent to demonstrate an
inability to pay; the burden is on the petitioner to prove by clear and
convincing evidence that the parent had the capacity to pay, 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 641. It is not enough for a petitioner
to “simply prove that [the parent] was not disabled during the relevant
timeframe” and therefore assume that he or she was capable of working and
paying child support. In re Josephine E.M.C., No. E2013-02040-COA–R3-
PT, 2014 WL 1515485 at *18 (Tenn. Ct. App. Apr. 17, 2014), perm. app.
denied (Tenn. July 23, 2014).
In re: Heaven J., No. W2016-00782-COA-R3-PT, 2016 WL 7421381, at *7 (Tenn. Ct.
App. Dec. 22, 2016), no appl. perm. appeal filed as of Feb. 22, 2017.
4
We cite herein to the Tennessee Code Annotated 2016 Supplement. No material changes were made to
the relevant portions of Tenn. Code Ann. §§ 36-1-113 or 36-1-102 since the events of or hearing in this
matter.
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Regarding failure to visit, this Court has stated:
A parent’s willful failure to visit the child “means the willful failure,
for a period of four (4) consecutive months, to visit or engage in more than
token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Token visitation is
defined as “visitation, under the circumstances of the individual case, [that]
constitutes nothing more than perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal
or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-102(1)(c).
***
The Supreme Court has held that “a parent who attempted to visit
and maintain relations with his child, but was thwarted by the acts of others
and circumstances beyond his control, did not willfully abandon his child.”
In re A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (citing Swanson, 2
S.W.3d at 189). However, “[a] parent’s failure to visit may be excused by
the acts of another only if those acts actually prevent the parent from
visiting the child or constitute a significant restraint or interference with the
parent’s attempts to visit the child.” In re M.L.P., 281 S.W.3d 387, 393
(Tenn. 2009) (citation omitted).
In re: Kenneth G., No. M2016-00380-COA-R3-PT, 2016 WL 4987475, at **6-7 (Tenn.
Ct. App. Sept. 15, 2016), no appl. perm. appeal filed.
We first address Father’s issues, beginning with whether the Trial Court erred in
finding the ground of failure to support. Father testified that he gave some items to the
Children such as clothes and milk. Otherwise, the evidence was clear that Father never
paid any support. Father’s non-payment alone is insufficient to establish the requisite
willfulness on his part necessary to establish this ground. The Trial Court stated
regarding both parents: “Reviewing their drug use the Court imputes willfulness to the
Respondents on account of their abuse of illegal drugs.” We reject this line of reasoning.
Although illegal drug abuse and the purchase or sale of illegal drugs may well be relevant
to determining whether a parent willfully has failed to support his or her child while
supporting his or her drug use, illegal drug activity by itself does not establish
willfulness. There is no statutory or case law basis for the Trial Court’s imputing
“willfulness to [Mother and Father] on account of their abuse of illegal drugs.”
Grandfather retained the burden of proving willfulness.
The Trial Court, however, was on point when it found: “[Father] is not willing to
get out and do what it takes to produce more income so that someday he may have a
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home of his own and his own car and his own place apart from his girlfriend and her
mother and her boyfriend.” The evidence in the record is clear and undisputed that
Father worked for Grandfather intermittently for years. Neither Father nor Grandfather
could give precise times that Father worked. However, Grandfather stated that Father
earned $10 to $12 per hour, and earned approximately two thousand dollars per year.
Grandfather also testified that Father would work more around the time of court dates.
Father himself testified to a certain lack of alacrity in seeking better employment. In
short, the record clearly shows that Father was capable of working, that he did work, and
yet he never paid any child support to Grandfather for the Children.
We recognize that this is a somewhat unusual set of circumstances in that the
parent whose parental rights are at stake was employed by the person seeking to
terminate his parental rights. Father testified that Grandfather told him not to worry
about child support. Grandfather disputed Father’s account. Even so, that would not
absolve Father of his obligation to contribute to the Children’s support. We find and
hold, as did the Trial Court, that the ground of willful failure to support was proven
against Father by clear and convincing evidence. We affirm the Trial Court on this issue.
We next address whether the Trial Court erred in finding the ground of failure to
visit as to Father. The Trial Court found: “It is apparent to the Court that the
Respondents’ contact with the children came about only when it was convenient for the
Respondents to have contact with the children and it was limited. The occasions when
visitations occurred were perfunctory.” There is some evidence in the record to suggest
that Father’s visits with the Children sometimes were not very meaningful as he played
on his cell phone throughout those visits. However, Grandfather himself testified that,
while he did not keep detailed logs of Father’s visits, Father did visit many times. At one
point in his testimony, Grandfather even used the term “substantially” to describe the
visits. We find that the evidence relevant to the Trial Court’s findings on the issue of
Father’s alleged willful failure to visit does not rise to the level of clear and convincing.
We reverse the Trial Court on this issue.
We next address whether the Trial Court erred in finding the ground of persistent
conditions as to Father. The ground of persistent conditions was alleged in Grandfather’s
petition, but the Trial Court never ruled on it. The Trial Court’s final order terminating
Father’s parental rights does not mention “persistent conditions” or any variation of the
term or the necessary elements thereof. Trial courts should rule on all grounds alleged in
parental termination proceedings. We do not believe, however, that remand would be a
proper remedy in this case. Grandfather does not attempt to rely upon persistent
conditions in his argument on appeal. The effect of the Trial Court’s failure to rule on
persistent conditions is that Father is not subject on this appeal to his parental rights being
terminated on the ground of persistent conditions.
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Father’s final issue is whether the Trial Court erred in finding that termination was
in the Children’s best interest. The Trial Court’s final order contains findings on point
with respect to the Children’s best interest. The evidence reflects that Father has a very
limited relationship with the Children, and that he is not truly self-sufficient so as to be
able to raise the Children. Indeed, Grandfather already is deducting money from Father’s
earnings to support Father’s two other children. We also are not unmindful of the
evidence produced at trial concerning Father’s history of illegal drug use. Meanwhile,
the evidence in the record is that the Children are doing well with Grandfather and that
Grandfather is a suitable caregiver. We find and hold, as did the Trial Court, that the
evidence is clear and convincing that termination of Father’s parental rights is in the
Children’s best interest.
We next address Mother’s issues, beginning with whether the Trial Court erred in
permitting the trial to proceed in Mother’s absence and whether Mother consequently was
denied effective assistance of counsel. Our Supreme Court held in In re: Carrington H.
that, while there are numerous special safeguards in parental termination cases including
a right to counsel, there is no right to effective counsel in these cases. Our Supreme Court
stated:
By refusing to import criminal law post-conviction type remedies,
we do not at all disregard the well-established constitutional principle
precluding the termination of parental rights except upon fundamentally
fair procedures. But this constitutional mandate can be achieved without
compromising the interests of children in permanency and safety. “By its
very nature, ‘due process negates any concept of inflexible procedures
universally applicable to every imaginable situation.’ ” Heyne v. Metro.
Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 732 (Tenn. 2012) (quoting
Cafeteria & Rest. Workers Union, Local 473 AFL–CIO v. McElroy, 367
U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961)). Tennessee court
rules, statutes, and decisional law are already replete with procedures, some
previously described herein, designed to ensure that parents receive
fundamentally fair parental termination proceedings.
***
Given these existing procedural safeguards, we decline to hold that
securing the constitutional right of parents to fundamentally fair procedures
requires adoption of an additional procedure, subsequent to or separate
from an appeal as of right, by which parents may attack the judgment
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terminating parental rights based upon ineffective assistance of appointed
counsel.
In re: Carrington H., 483 S.W.3d at 533, 535.
On October 3, 2016, a petition for writ of certiorari was denied by the Supreme
Court of the United States in Vanessa G. v. Tennessee Dep’t of Children’s Services, an
attempt to appeal In re: Carrington H. Therefore, In re: Carrington H. is truly final and
binding on this Court. Mother’s argument that she is entitled to relief because her
counsel was ineffective is unavailing. Our Supreme Court has held, with the U.S.
Supreme Court declining to review, that, as opposed to in criminal matters, there is no
mechanism to seek relief based upon alleged ineffective assistance of counsel in parental
termination cases.
Mother, however, under In re: Carrington H. was entitled to “fundamentally fair
procedures . . . .” Given this record, we conclude that Mother was not subjected to
fundamental unfairness in the parental termination proceedings when the trial proceeded
in her absence. While the Trial Court never entered an order on Mother’s counsel’s
motion to withdraw, Mother’s counsel remained on her case and represented Mother at
trial in Mother’s absence. The record reveals that Mother’s counsel attempted to
communicate with Mother throughout the case, even if these efforts were not always
successful. As to Mother’s counsel deciding to proceed without Mother at trial, Mother
must accept the responsibility for her absence. Also, it is certainly possible that Mother’s
counsel made a tactical decision that proceeding without Mother at trial would not hurt
and might help Mother’s case. In sum, we find that Mother has failed to demonstrate that
she was deprived of any of her rights related to her representation or to fundamental
fairness in the parental termination proceedings.
We next address whether the Trial Court erred in finding the ground of failure to
visit. The question of Mother’s visitation with the Children has been the subject of some
confusion in the testimony. Grandfather kept detailed logs on Mother’s visits, and he
testified to this at trial. Initially, it was Grandfather’s position that Mother visited only 17
times. However, it is evident from his own logs that Grandfather must have meant that
Mother missed 17 visits, and actually visited 43 or 44 times. Grandfather acknowledges
the mistake on appeal. However, even if we went with the lower figure of 17 visits in the
relevant four-month period preceding the filing of the petition, as initially asserted, we
would be hard-pressed to deem that token visitation. The evidence is not clear and
convincing as to the ground of Mother’s willful failure to visit, and therefore, we reverse
the Trial Court as to the ground of willful failure to visit with respect to Mother.
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We next address whether the Trial Court erred in admitting certain text messages.
These were the text messages produced by Robert T. at trial purportedly showing that
Mother engaged in illicit drug sales. This Court has stated with respect to the
admissibility of evidence:
The issues involve the correctness of the trial court’s determinations
of the admissibility of evidence. “Generally, the admissibility of evidence is
within the sound discretion of the trial court.” Mercer v. Vanderbilt Univ.,
134 S.W.3d 121, 131 (Tenn. 2004). “When arriving at a determination to
admit or exclude even that evidence which is considered relevant trial
courts are generally accorded a wide degree of latitude and will only be
overturned on appeal where there is a showing of abuse of discretion .” Otis
v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992).
***
Tenn. R. Evid. 901 governs this issue and provides in pertinent part:
(a) ... The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to the court to
support a finding by the trier of fact that the matter in question is what its
proponent claims.
Bilbrey v. Parks, No. E2013-02808-COA-R3-CV, 2014 WL 4803126, at **3, 14 (Tenn.
Ct. App. Sept. 29. 2014), no appl. perm. appeal filed.
These text messages allegedly were deleted by Mother, then later recovered by the
police, and then produced in court by Robert T. We have doubts as to the foundation laid
for the admission of these text messages. Robert T.’s testimony on this issue was
combative, defensive, and at times unclear. He was unable to recall precise dates and
could only surmise that Mother sent or received these texts. Shawn G., Mother’s father,
testified at trial that a text did not resemble Mother’s writing style, although he did
respond to the message. Nevertheless, the standard here is abuse of discretion. The Trial
Court evidently considered Robert T.’s testimony credible and sufficient to establish that
the text messages were what they were claimed to be. Under the abuse of discretion
standard, if reasonable minds can disagree about a particular discretionary decision, we
will not disturb that decision. While a close question, we find no abuse of discretion in
the Trial Court’s decision to admit the text messages.
The significance of the text messages is that they could be interpreted to show that
Mother earned money selling drugs, which could in turn support a showing of willfulness
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in her failure to pay any child support. However, as noted by Mother at oral argument,
the text messages perhaps better lend support to a conclusion that, if anything, Mother
was a failed drug dealer. We find that the text messages, even accepting their
authenticity and admission, are not dispositive to the issue of Mother’s alleged willful
non-support.
We next address whether the Trial Court erred in finding the ground of failure to
support as to Mother. The Trial Court, as it did with Father on the same ground,
emphasized heavily Mother’s history with drugs. However, unlike Father’s case, the
evidence is silent as to Mother’s means or capability to work during the relevant four
month period preceding the filing of the petition to terminate parental rights.
Grandfather had the burden to prove that Mother could have paid child support
during that four month window and willfully chose not to do so. We find no evidence in
the record showing that Grandfather met his burden here. The fact that Mother had
abused drugs and generally was irresponsible in her life cannot alone impute willfulness
as to her non-support. Likewise, Mother’s drug abuse and general irresponsibility did not
shift the burden of proof as to willfulness from Grandfather to her. We reverse the Trial
Court’s finding of willful non-support with respect to Mother because there was no clear
and convincing evidence proving willfulness during the relevant four month period.
Because we reverse both grounds found against Mother, the issue of best interest is
pretermitted as to her.
In summary, applying the standard of clear and convincing evidence, we affirm
the termination of Father’s parental rights to the Children on the ground of willful failure
to support. We reverse the ground of willful failure to visit with respect to Father. We
find further that termination of Father’s parental rights is in the Children’s best interest.
We reverse both grounds for termination of parental rights found against Mother.
Mother’s successful defense of her parental rights to the Children on appeal necessarily
entails that adoption of the Children by Grandfather also is reversed.
Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for collection of the costs below. The costs on
appeal are assessed equally against the Appellant, Christopher V., and his surety, if any,
and the Appellee, Glenn V.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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