In Re: Landen P. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 4, 2013 Session
IN RE LANDEN P.
Appeal from the Circuit Court for Bradley County
No. V-11-551 J. Michael Sharp, Judge
No. E2012-01291-COA-R3-PT-FILED-APRIL 22, 2013
This is a termination of parental rights case focusing on Landen P. (“the Child”), the minor
daughter of Kevin P. (“Father”) and Ciera P. (“Mother”). The Child was born in 2007, while
the parents were residing in Florida. In 2008, Mother left Father and the Child and moved
to Utah. Thereafter, she maintained sporadic contact with the Child only by telephone.
Father subsequently moved with the Child to Cleveland, Tennessee in 2009. In 2011,
Father’s mother and stepfather, Judy and Todd R., obtained custody of the Child through
proceedings in the Bradley County Juvenile Court. Judy and Todd R. filed the instant
petition seeking to terminate Mother’s parental rights on August 1, 2011, for the purpose of
adopting the Child. Having been arrested in May 2011, Father was incarcerated at the time
of trial. Father consented to the adoption, and his parental rights were terminated on
February 24, 2012. Following a bench trial, the trial court granted the petition and terminated
Mother’s parental rights. The court found, by clear and convincing evidence, that Mother
had abandoned the Child by failing to visit and support her during the relevant four-month
time period and that termination was in the Child’s best interest. Mother has appealed. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Richard L. Elliston, Cleveland, Tennessee, for the appellant, Ciera P.
Philip M. Jacobs, Cleveland, Tennessee, for the appellees, Todd and Judy R.
OPINION
I. Factual and Procedural Background
Mother and Father were married on February 19, 2007, while residing in Florida. At
the time, Father was stationed there with the military. The Child was born October 31, 2007.
A strained relationship between the parents soon developed. Father claimed that Mother had
committed adultery, which Mother denied. Mother claimed that Father was abusive, which
Father likewise denied. Mother and Father separated in March or April 2008. The Child
remained with Father as Mother moved in with friends. Mother last visited with the Child
in July 2008. In August 2008, Mother left the state of Florida and relocated to Utah.
In April 2009, Father was discharged from military service and relocated to Cleveland,
Tennessee for the purpose of being near his family. In May 2011, Father was arrested and
charged with two counts of rape. Prior to his incarceration, Father and Child resided in
Cleveland, at times independently and on other occasions with family members. At some
point, Mother moved to Nevada. By trial she was residing in a Boulder City condo titled in
the name of her mother. It is undisputed that Mother has not seen the Child since she left
Florida in 2008.
Father stated that he would call Mother occasionally and the two would speak by
phone. He would not hear from her again, however, for several months. During this period,
the Child maintained a residence with Father, as Mother never questioned the Child’s
residential arrangement nor specifically requested to take the Child. Father did not have
Mother’s address.
Mother had only spoken to the Child via telephone three or four times from 2008-
2011. Although Mother claims to have sent financial support for the Child, Father denies
having received any payment. Father stated that the maternal grandmother had sent small
amounts of money or gifts of clothing two to four times.
The two-day trial in this cause was conducted on March 7, 2012 and on April 4, 2012.
Having carefully considered the evidence, the trial court made extensive findings of fact and
conclusions of law. The court specifically found that the petitioners proved by clear and
convincing evidence the statutory grounds of abandonment by Mother’s willful failure to
visit and willful failure to support the Child.
The trial court then considered the statutory factors regarding a best interest analysis,
likewise making lengthy findings. The court concluded that there was clear and convincing
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evidence that termination of Mother’s parental rights was in the Child’s best interest. The
court entered an order terminating Mother’s parental rights on May 18, 2012. Mother filed
a timely notice of appeal.
II. Issue Presented
Mother’s sole issue presented on appeal is whether there is clear and convincing
evidence of the statutory ground of abandonment for termination of her parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal,
and shall not be disturbed absent clear and convincing evidence to the contrary. See
McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1995).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a termination
proceeding under Tenn. Code Ann. § 36–1–113, the persons seeking to
terminate these rights must prove all the elements of their case by clear and
convincing evidence. Tenn. Code Ann. § 36–1–113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to minimize the
possibility of erroneous decisions that result in an unwarranted termination of
or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn.
Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Clear and convincing evidence enables the fact-finder to form a firm belief or
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conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005), and eliminates any serious or substantial doubt
about the correctness of these factual findings. In re Valentine, 79 S.W.3d at
546; State, Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435,
447 (Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Abandonment
The trial court terminated Mother’s parental rights on the ground that she abandoned
the Child. Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2012) provides, as relevant
to this action, as follows:
(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; . . .
Tennessee Code Annotated § 36-1-102(1)(A)(i) (2010) defines abandonment, in relevant
part, as:
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(s) or
guardian(s) of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) or guardian(s) 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; . . .
Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has
previously explained:
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
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consecutive months.
In re Audrey S., 182 S.W.3d at 863.
Failure to visit or support a child is “willful” when a person is “aware of his or her
duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so.” Id. at 864. Further, failure to visit or to support is not
excused by another person’s conduct “unless the conduct actually prevents the person with
the obligation from performing his or her duty, or amounts to a significant restraint of or
interference with the parent’s efforts to support or develop a relationship with the child.” Id.
This Court further explained:
The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.
Id. (citations omitted).
In determining that the petitioners established that Mother willfully failed to visit the
Child and failed to provide any support during the applicable four-month period, the trial
court entered its Final Order on May 18, 2012, which included the following pertinent
findings of fact:
Based on the above, it is undisputed that [Mother] did not visit her child for the
four months as required by statute. This has been proven by clear and
convincing evidence. [Mother] testified that in the four-month period she had
bought the child a one-way plane ticket. Yet she offered no proof or evidence
of any kind to prove this purchase. The petitioners and [Father] testified that
[Mother] sent no support for the child in those four months, nor for the many
months before that. The court does not find [Mother’s] testimony regarding
any payments of support to be credible. In fact, the court does not find any
credible proof that [Mother] ever paid any support, nor offered any support of
any kind, during the years from 2009 through to the time of this hearing. The
court takes judicial notice of the fact that [Mother] testified that she worked,
was able to support herself, had her own home and paid all of her own bills
including cable and internet.
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The court finds that there is no evidence that the Petitioners, nor anyone else
for that matter, prevented [Mother] from visiting or supporting her child. She
had every opportunity to take whatever actions she deemed necessary to see
her child and she made the personal choice not to take any action to see the
child. The court finds that [Mother] essentially abandoned this child when she
left for Utah in late 2008 or early 2009. The court finds that [Mother] has
never paid any support for this child. The court finds that the petitioners have
proven by clear and convincing evidence the grounds of abandonment –
willful failure to visit and abandonment by willful failure to support.
A. Failure to Visit
Mother does not dispute that she failed to personally visit the Child during the relevant
four-month period. She argues instead that there was insufficient proof of her willful failure
to visit the Child, because she participated in Skype communication with the Child in May
2011. We disagree. Mother testified that she spoke to the Child using Skype, an internet
service that provides on-screen audio/video communication via camera, on May 20, 21, 22,
23, and 24, 2011. Mother indicated that this contact occurred while the Child was with
Father. Father denied that any Skype conversations occurred.
Mother provides no authority for her contention that these alleged Skype
conversations constitute visitation pursuant to the applicable statute. Further, the trial court
found Mother’s testimony to be lacking in credibility on this point. The trial court noted that
Father was incarcerated on two of the days Mother claimed that these conversations
occurred. This Court has consistently held that a parent’s demeanor and credibility as a
witness “play an important role in determining intent, and trial courts are accordingly in the
best position to make such determinations.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
We conclude that Mother failed to show that she engaged in Skype communication with the
Child. By reason of this determination, we do not address whether Skype communication
between a parent and child constitutes visitation pursuant to the statute.
Mother next argues that she did not willfully fail to visit the Child as she had
formulated and funded a plan designed to bring the child to Nevada. Mother argues that this
evidence shows that she did not have the intent to abandon the Child. Again, we disagree.
The trial court specifically found that Mother’s testimony regarding the provision of funds
and tickets was not credible.
At trial, Mother testified that she was in contact with Father in the days before his
arrest, and stated that she bought airline “buddy passes” for him and the Child so that they
could visit her in Nevada. Mother testified that she also put $600 in a joint account which
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she still maintained with Father, but did not know what had happened to the funds. Mother
provided no proof of the purchase of airline tickets and no proof of sending funds to Father
for a trip to Nevada. Father denied that this course of events had occurred.
Mother also admitted that she knew where the Child was residing at least by May
2011, but she did not manage to travel to Tennessee until February 2012. Mother presented
no proof that she had ever requested to see the Child and been denied access. Mother
likewise presented no evidence that anyone had prevented her from knowing the Child’s
whereabouts. Thus, the evidence does not preponderate against the trial court’s finding, by
clear and convincing evidence, that Mother willfully failed to visit the Child. We hold that
the trial court did not err in terminating Mother’s parental rights on this ground.
B. Failure to Support
Mother next argues that she did not willfully abandon her child by failing to provide
support during the four-month period because she did not know the Child’s whereabouts.
We find Mother’s argument to be unpersuasive. Tennessee Code Annotated § 36-1-
102(1)(H) explicitly states, however, that “[e]very parent who is eighteen (18) years of age
or older is presumed to have knowledge of a parent’s legal obligation to support such
parent’s child or children.” Mother obviously knew that she had some duty of support, as she
testified at trial that she sent thousands of dollars to Father in the years since she left Florida.
Mother provided no proof of this, however, and Father and Judy R. both denied that Mother
had ever sent any support. The trial court found that Mother’s testimony was not credible.
Mother now argues that she could not support the Child because she did not know
where the Child and Father were residing during the applicable four-month period. Mother
testified that after leaving Florida, she hired a private investigator to search for Father, but
the investigator was unable to locate him. Mother indicated that the private investigator was
simply “a friend.” Mother asserted that she did not have an address for Father and did not
know his location after he left the military. She and Father spoke a few days before his arrest
with Father ultimately sending her a message stating that his mother had filed a missing
persons report. Mother indicated that she immediately called the Bradley County Police
Department and confirmed that such a report existed. She was told that Father had come in
and then left. Mother posits that if she had known the Child was residing in Cleveland, she
would have traveled there to get her much sooner.
Mother stated that she knew the address of Father’s grandmother in Cleveland, as she
claimed to have sent checks and gifts there through the years. Mother testified that the
checks had not been cashed, but stated that she had carbon copies of them. She, however,
produced no documentary evidence of same. Mother further admitted that she clearly knew
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as of May 24, 2011, that Father and the Child were in Cleveland.
As Tennessee Code Annotated § 36-1-102(1)(G) expressly provides: “it shall not be
required that a parent be shown to have evinced a settled purpose to forego all parental rights
and responsibilities in order for a determination of abandonment to be made.” In this case,
the proof is undisputed that Mother had not visited the Child in nearly four years. As the trial
court found, Mother knew she had a Child and she knew where the Child was when she left
Florida. Mother admitted that she had contact with Father periodically. Mother provided no
proof that Father kept the Child or her whereabouts from Mother. Mother’s testimony
established that she knew when Father left the military, and at least suspected he was in
Cleveland with his family because (1) she claimed that she and her mother sent things there
for the Child, and (2) when Father stopped communicating with her in May 2011, her first
call was to the Bradley County Police Department. Mother admitted that she had been to the
home of Father’s grandmother in the past and knew the address. Thus, Mother’s contention
that she did not know where to send support is without merit.
As stated above, trial courts are in the best position to make a determination regarding
a parent’s intent, based on her demeanor and credibility as a witness. D.L.B., 118 S.W.3d
at 367. In this case, the trial court found that Mother had admitted that she was gainfully
employed and able to pay her own living expenses, thus she clearly had the ability to pay
some amount of support. The trial court also found that Mother was not credible in her claim
to have sent support. Notably, the only support that Mother claimed to have sent in the
requisite four-month period was the $600 she allegedly put in an account titled to her and
Father. Mother provided no proof of this payment, however, and testified that she had no
way of knowing what had happened to it. The evidence does not preponderate against the
trial court’s ruling, by clear and convincing evidence, that Mother had willfully failed to
support the Child for the requisite four-month period. We hold that the trial court did not err
in terminating Mother’s parental rights on this ground.
V. Best Interest of Child
While Mother has not appealed the trial court’s finding that it is in the Child’s best
interest to terminate her parental rights, because of the significance of this issue, we have
considered it. See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010). When at
least one ground for termination of parental rights has been established, as here, the
petitioners must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the Child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn.
Ct. App. 1994). When a parent has been found to be unfit by establishment of a ground for
termination, the interests of parent and child diverge, and the focus shifts to what is in the
child’s best interest. In re Audrey S., 182 S.W.3d at 877.
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After reviewing the record, we find that there is clear and convincing evidence that
termination was in the Child’s best interest. Therefore, we affirm the trial court’s termination
of Mother’s parental rights.
VI. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to appellant, Ciera P. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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