IN RE: Chad Andolino Charles Alaln Mix and Lorena May Mix v. Robert Barton - Concurring ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
FILED
IN RE: CHAD ALAN ANDOLINO )
) December 2, 1997
CHARLES ALAN MIX and LORENA )
MAY MIX, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
Petitioners/Appellants, ) Decatur Chancery No. 2305
)
VS. ) Appeal No. 02A01-9510-CH-00224
)
ROBERT BARTON, )
)
Intervening Petitioner/ )
Appellee. )
APPEAL FROM THE CHANCERY COURT OF DECATUR COUNTY
AT DECATURVILLE, TENNESSEE
THE HONORABLE WALTON WEST, CHANCELLOR
THOMAS F. BLOOM
Nashville, Tennessee
Attorney for Appellants
LEW CONNER
LARRY H. HAYES, JR.
BOULT, CUMMINGS, CONNERS & BERRY, PLC
Nashville, Tennessee
Attorney for Appellee
AFFIRMED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
DAVID G. HAYES, J.
This case presents for review the decision of the Chancery Court of Decatur County
finding that the Defendant, Robert Barton (“Father”) did not abandon his son, Chad
Andolino (“Son”) and, therefore, dismissing Plaintiffs’, Charles and Lorena Mix (“Mixes”),
petition for adoption. The Mixes appealed. For reasons stated hereinafter, we affirm the
judgment of the trial court.
Facts
Barton first met the natural mother of Son, Debra Andolino (“Mother”), on Easter
Sunday, April, 1991. Mother discovered she was pregnant in September, 1992. Son was
born May 12, 1993. Father and Mother began living together in January, 1993, and
continued to do so until March, 1993, when they separated. Mother has three daughters
from previous relationships.
The parties’ assertions of facts conflict in nearly every respect. The Mixes contend
that Father wanted Mother to get an abortion, that Father added virtually nothing to
Mother’s support while they lived together, that Father never evinced any real interest in
Son before or after his birth, and that Father only desires custody of Son now in order to
gain a promised financial windfall from Father’s mother. Father repudiates these claims
and argues that his apparent lack of care for Son is solely the result of attempts by the
Mixes to keep him from having any contact with Son.
Specifically, there is some dispute over Father’s contributions to Mother and Son
before and after Son’s birth. Father contends that Mother and he compiled their money
and split the bills. Mother asserts that Father made virtually no contributions to the
household. Several witnesses on behalf of Mother testified that Mother paid the bills,
bought food, and borrowed money from others in order to buy groceries and gas. Father
supplied several receipts to prove his contributions. Father contends that these are
representative of the financial contributions made by him to the household. Mother
testified that many of these receipts belonged to her and not Father.
Father admits to using illegal drugs and drinking alcohol in the past, but contends
that he has never drunk beer or taken any illegal drugs in front of the children and has
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never encouraged the children to do so. Additionally, Father claims that, at the present
time, he does not partake of drugs, and only occasionally drinks beer.
Father admits that he did not aid with Mother’s medical costs during her pregnancy,
but asserts that Mother’s pregnancy was covered by Medicaid. Additionally, Father
contends that he escorted Mother to the doctor several times while she was pregnant with
Son. Mother contends that Father went to the doctor on one occasion for the “selfish
purpose” of verifying that Mother was pregnant and, on another occasion, to drop off
Mother at the emergency room.
Father and Mother separated in March, 1993. As Father and Mother’s relationship
was nearing an end, Mother contends that Father beat her daughter, Shantel, to the point
that bruises were left by the beating. Father admits only to “spanking” Shantel and denies
that he left any marks on her. As a result, Mother received a restraining order against
Father, restraining him from the house.
After separating, Father made no contact with Mother and Son. Father
acknowledged this lack of contact with Mother and Son after his separation with Mother.
However, Father alleged that this was because he did not understand that he was free to
contact her under the restraining order. Father and Mother did not see each other again
until April, 1993, when the two met at Pizza Hut, along with Lorena Mix, Mother’s friend,
Jennifer Roman, and Lorena Mix’s brother, Eddie. Mother was attempting to procure
Father’s consent for adoption. Father contends that he did not know why Mother called
the meeting, but he thought the meeting was probably to “talk peace.” Father asserts that
he had no idea that the meeting was to discuss adoption and the surrender of his parental
rights. Father did not agree to the adoption nor to the surrender his parental rights.
In April, 1993, Mother returned with Lorena Mix to Nashville, Tennessee. Lorena
Mix stayed with Mother in a Nashville hotel and was present when Mother went into labor.
The Mixes were married on May 1, 1993. Son was born on May 12, 1993, and has lived
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with the Mixes since May 14 of that same year. Mother legally surrendered Son to the
Mixes. Mother did not tell Father that she had gone to Nashville, Tennessee. Father
called several hospitals to find the whereabouts of Mother. Unsuccessful in his attempts
to locate Mother, Father hired an attorney and a private investigator to find Mother and
possibly their newborn child. The private investigator located Mother and Son and informed
Father of their whereabouts.
After Son’s birth, Mother saw Father in June, 1993. Father asked Mother about
Son’s sex, name, and health. Mother alleges that Father made no further inquiry about
Son, and did not offer payment of support, nor payment of any hospital bills as a result of
the birth of Son. That same month, Mother started dating Father again. Mother asserts
that, in this time, Father never asked about Son. The relationship ended when Mother
discovered that the Mixes had been served with court papers on behalf of Father.
On June 3, 1993, the Mixes filed a petition for the adoption of Son. Father filed a
petition to intervene and a motion to dismiss petition for adoption on November 23, 1993.
On January 3, 1994, Father’s petition to intervene was allowed. An order was entered in
the state of Florida adjudicating Father to be the natural father of Son on June 6, 1994.
On June 7, 1994, the Mixes filed an amended petition for adoption in part to change Son’s
name to Charles Alan Mix from the present name of Chad Alan Andolino. On September
15, 1994, Father’s motion to dismiss the adoption was denied. Thereafter, on October 18,
1994, the Mixes filed a petition for a home study of Father on the claims that he did not
earn enough money or have a proper home in which to raise Son. On February 20, 1995,
the Mixes filed a petition for custody. Subsequently, on March 13, 1995, the trial court
issued its order denying the Mixes petition for adoption. The trial court found that
The evidence in this case does not rise to the level of clear and
convincing proof of the father’s intent to abandon his child,
especially considering that all legitimately controverted facts
are to be resolved in favor of the father.
In determining that the evidence of abandonment was not clear and convincing proof, the
court stated:
Up until two months prior to the birth of the child, the father
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resided with the mother and contributed support to the
household. A protective order prohibited the father from
contacting the mother between the dates of the parent’s
separation in March and the birth of the child in May. . .[u]pon
learning of the approximate date of the child’s birth, the father
made efforts to locate the mother and child. After discovering
the child had been placed for adoption, the father proceeded
to file custody proceedings in Florida seeking custody of his
child. In conclusion, the Court finds that the legal standard for
abandonment in adoption cases has not been met.
A petition for transfer of custody and for a temporary restraining order were filed by
Father on May 26, 1995. Thereafter, Lorena Mix absconded with Son. On June 20, 1995,
the trial court ordered that Son be turned over to the Department of Human Services. On
July 3, 1995, Father filed an answer to the petition for custody. A motion for stay of
temporary custody order pending final custody determination was filed by the Mixes on
August 17, 1995. The trial court granted an additional fifteen days from October 5, 1995,
to perfect an interlocutory appeal of the dismissal of the Mixes’ petition for adoption. The
Mixes filed their notice of appeal on October 12, 1995.
By an order dated October 24, 1995, this Court remanded the case to the trial court
for a hearing to determine Father’s fitness and ability to take care of Son. The hearing was
conducted on December 1, 1995. By an order entered January 19, 1996, the trial court
found that Father had married, that Father and his wife had a stable home environment,
and that Father and his wife resided in appropriate physical facilities within which to rear
Son. However, the trial court further found that Father stayed away from home after his
regular work hours and spent that time involved in illegal drugs or frequenting places where
drugs were easily obtainable. The trial court concluded that Father could not provide a
stable home environment for Son and would not be an appropriate person to have custody
of Son. As it stands now, the Mixes have custody of Son, but have been denied the right
to adopt him. Father’s parental rights are still intact. This appeal ensued.
The Mixes appealed, challenging the order of the trial court finding that Father had
not abandoned Son and, thereby, dismissing their petition for adoption.
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Discussion
Inasmuch as this case was tried by the court below sitting without a jury, this court’s
review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which
directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692
S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d
297, 300 (Tenn. Ct. App. 1984); T.R.A.P. 13(d). In conducting a de novo review of the
record below, however, this court must presume that the trial court’s findings of fact are
correct. Under this standard of review, we must affirm the trial court’s decision unless the
trial court committed an error of law affecting the result or unless the evidence
preponderates against the trial court’s findings. Roberts, 692 S.W.2d at 865. In this
regard, when a conflict in testimony requires the trial court to make a determination
regarding the credibility of a witness or witnesses, such a determination is binding on the
appellate court unless other real evidence compels a contrary conclusion. Hudson v.
Capps, 651 S.W.2d 243, 246 (Tenn. Ct. App. 1983).
Parents, including parents of children born out of wedlock, have a fundamental
liberty interest in the care and custody of their children under both the United States and
Tennessee Constitutions. Stanley v. Illinois, 405 U.S. 645 (1982); Nale v. Robertson, 871
S.W.2d 674, 678 (Tenn. 1994). These parental rights are primary and superior above all
others and continue unless the parent consents, relinquishes them, abandons his or her
child, or forfeits his or her parental rights by some conduct that is not in the best interest
of the child as provided in T.C.A. § 37-1-147(b)(c)(d)(1) - (6). Indeed, we recognize that
adoption proceedings profoundly affect not only the rights of the natural parents but also
the rights of the child and the adoptive parents. When an adoption is granted, the natural
parents are reduced to the role of complete strangers and have no rights, parental,
visitation or other insofar as the child is concerned. Grider v. Grider, 187 S.W.2d 613, 614
(Tenn. Ct. App. 1945). At this time, the granting of a petition for adoption establishes from
that date a relationship of parent and child between the adoptive parents and the adopted
child as if the adopted child had been born to the adoptive parents in lawful wedlock. In
Re Adoption of Dearing, 572 S.W.2d 929, 932 (Tenn. Ct. App. 1978).
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At the time this case came to trial, Tennessee lacked a uniform standard for
determining whether a parent has abandoned his or her child.1 We should note that,
according to its express provisions, the definition of “abandoned child,” in the version of
T.C.A. § 36-1-102(1)(A) applicable at the time of this case, relates to cases where there
is an “action or proceeding to declare the child to be an abandoned child.” At the time of
this case, this had not been extended by amendment or construction to apply when the
issue of abandonment is under consideration in an adoption proceeding in the circuit or
chancery court. See In Re Adoption of Parsons, 766 S.W.2d 196, 200 (Tenn. Ct. App.
1988). Thus, the trial court is not limited by the definition of an abandoned child found in
T.C.A. § 36-1-102(1)(A) (1991 Supp.). Ex Parte Wolfenden, 349 S.W.2d 713, 714 (Tenn.
Ct. App. 1959).
The Tennessee Supreme Court has articulated the standards for determining
abandonment in adoption proceedings as follows:
Abandonment, as it pertains to an adoption proceeding, 2
imports any conduct on the part of the parent which evinces a
settled purpose to forego all parental duties and relinquish all
parental claims to the child. . .
In re Adoption of Bowling, 631 S.W.2d 386, 389 (Tenn. 1982)(quoting Ex parte Wolfenden,
349 S.W.2d 713, 714 (Tenn. Ct. App. 1959)); See also In re Adoption of Female Child
(Bond v. McKenzie), 896 S.W.2d 546, 547 (Tenn. 1995). This Court has held that:
The evidence of abandonment must show a “conscious
1
A spe cial legislative co m m ittee studied Te nne sse e’s ad option laws. See S.J.Res. 17, 98th Gen.
As sem bly, 1st S ess ., 1993 T enn . Pub . Acts 105 0. The com m ittee introd uce d legislation in the Nine ty-Ninth
General Assembly that replaced the existing standard s with a sing le stan dard . See S. 653/H. 406, 99th Gen.
As sem bly, 1st Sess., § [1], 36-1-102(1), at 3-6 (1995). This adoption sta ndard was codified at T .C.A. Title
36 Chapter 1 Parts 1 and 2 and became effective January 1, 1996. The definition of “abandoned child”
app licable w hen this ca se c am e to trial was a s follow s:
“Abandoned child” m ean s: A child whos e pa rents have willfully fa iled to visit
or have willfully fa iled to support or m ak e re asonable payments toward such
child’s support for four (4) consecutive months immediately preceding the
institution of a n actio n or proceeding to declare the child to be an
abando ned child. T.C.A. § 36-1-102 (1)(A) (1991Su pp.).
2
As a m atter of law, we note that at the time of this case there was a distinction in the law between
cases where an abandonment is asked to be declared and those cases where not only is there an
abandonment request, but also an adop tion of the abandoned child. In 1995, the form er situation was
controlled by a statutory definition of “abandoned child” in T.C.A. § 36-1-102(1)(A) (1991 Supp.). In the latter
situation, case law sets the precedent concerning the definition of “abandoned child.” The new version of the
adoption statute, codified at T.C.A. Title 36, Chapter 1, Parts 1 and 2, encom passe s both situations. However,
the events of this case took place before this statute was enacted on January 1, 1996.
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disregard or indifference” for parental obligations and must
demonstrate that there has been an actual desertion,
accompanied with an intention to entirely sever, so far as it is
possible to do so, the parental relationship and throw off all
obligations growing out of the same.
Francher v. Mann, 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968). Accordingly, we concluded
that the conduct must amount to “an absolute, complete and intentional relinquishment
of all parental control and interest . . . [in] the child” in order to constitute abandonment.
Francher, 432 S.W.2d at 66.
As mentioned above, a natural parents rights are given a position of priority and
superiority over all others. The heightened burden of proof charged upon those seeking
a declaration of abandonment in an adoption proceeding is another safeguard against a
wrongful termination of these parental rights. Unlike most other civil cases requiring proof
by a preponderance of the evidence, adoption cases mandate the party asserting that a
parent has abandoned his or her child prove their case by clear and convincing evidence.
In re Adoption of a Female Child, 896 S.W.2d at 547; Koivu v. Irwin, 721 S.W.2d at 807.
The “clear and convincing evidence” standard defies precise definition. Majors v.
Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is more precise than the
preponderance of the evidence standard, Rentenbach Engineering Co. V. General Realty
Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as the
“beyond a reasonable doubt” standard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn.
Ct. App. 1992). Clear and convincing evidence eliminates any serious or substantial doubt
concerning the correctness or the conclusions to be drawn from the evidence. See
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). It should produce in the
fact-finder’s mind a firm belief or conviction with regard to the truth of the allegations
sought to be established. Brandon v. Wright, 838 S.W.2d at 536; In re Estate of
Armstrong, 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993).
The evidence in this record does not qualify by the foregoing standard.
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Courts have consistently used the standards set forth in Ex parte Wolfenden and
Francher v. Mann to determine whether a parent has abandoned his or her child.3 These
decisions illustrate that the courts consider the following matters when ascertaining
whether an abandonment has occurred or not:
(1) The parent’s ability to support the child; (2) the amount of
support the parent has provided to the child; (3) the extent and
nature of the contact between the parent and the child; (4) the
frequency of gifts on special occasions; (5) whether the parent
voluntarily relinquished custody of the child; (6) the length of
time the child has been separated from the parent; and (7) the
home environment and conduct of the parent prior to or in lieu
of any actual removal of the child to another.
Koivu v. Irwin, 721 S.W.2d 803, 807 (Tenn. Ct. App. 1986). No single factor is controlling.
O’Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn. Ct. App. 1995). Abandonment inquiries
are heavily fact-oriented, so the courts may consider any fact that assists in deciding
whether the parent’s conduct demonstrates a conscious disregard of all of his or her
parental responsibilities. Id. We feel that it is important to note that abandonment by
natural parents may be found only when, being given benefit of every controverted fact,
such inference follows from the evidence as a matter of law. Ex parte Wolfenden, 348
S.W.2d at 756-757.
Turning to the factors articulated in Koivu, we agree with the trial court’s findings that
Father never abandoned Son. Regarding factor (1), Father has remarried, has regular
employment with a radio station and as a musician, and has a stable home environment
with his present wife. Factor (2) is a controverted fact, and as such, Father should be
given the benefit of this fact. Father testified that Mother and he “split the bills.”
Additionally, Father testified that he attempted to send clothes and toys to Son, but the
Mixes would not allow him to do so. The Mixes admit to denying Father any right to see
Son or assert his rights as a parent. Concerning factors (3), (4), and (6), as mentioned
above, the Mixes have denied Father any right to see Son or to assert any of his rights as
a parent; therefore, any efforts of Father were futile. Father requested visitation, but has
3
Pierce v. Bechtold, 448 S.W .2d 425 (Te nn. Ct. App. 1968); In re A doptio n of Fem ale Ch ild (Bond v.
McK enzie), 896 S.W .2d at 547 (Te nn. 1995 ); In re Adoption of Parsons, 766 S.W .2d 196 (T enn. Ct. App.
1988); In re Adoptio n of Self, 836 S.W . 581 (Tenn . Ct. App. 1992); In re Rigsby, App. No. 01-A-01-9304-CV-
00171, slip op. at 10.
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not been granted such by the Mixes. Father’s offers to send clothes and toys were
emphatically denied by the Mixes. Factor (5) is illustrated in that Father has refused to
surrender his rights after repeated request to do so by Mother. Upon learning of the
approximate date of Son’s birth, Father made efforts to locate Mother and Son. After
discovering that Son had been placed for adoption, Father filed custody proceedings in
Florida. Concerning factor (7), the conduct and home environment of Father in lieu of
actual removal of Son to the Mixes was stable in that Father had remarried, was employed
full time, and according to his testimony, did not presently partake of drugs and only
occasionally drank beer. In fact, the trial court found that Father and his new wife
presented a stable home environment for a child.
We recognize that the evidence concerning many of these factors was disputed at
trial. The trial court, however, was in a position to evaluate the credibility of the witnesses
at the hearing, and the court apparently resolved this dispute in favor of Father. We agree.
We feel that it is necessary to note the gravity and difficulty in this matter.
Undoubtedly, certain children would be better off without the presence of one parent or the
other in their lives, but that is not, and has never been a basis to grant a petition for
adoption. This is an adoption proceeding not a custody determination. As this court
quoted in Ex parte Wolfenden, “The rights of the parties and authority of the court in an
adoption proceeding differs greatly from those in a chancery action involving mere custody,
for adoption affects the course of inheritance, severing forever and conclusively the legal
rights and interests of the natural parents, while custody is only a change into another
relationship on a temporary basis.” Ex parte Wolfenden, 348 S.W.2d at 757.
We agree that it is one thing to say that a parent’s actions have been of such a
nature as to remove a child from the parent’s home, but it is quite another thing to say that
a parent’s actions have gone so far as to decree that “the child is no longer your child.”
Based on the evidence in this record, giving Father the benefit of every controverted
10
fact, there is no clear and convincing evidence that Father abandoned Son and the
evidence does not preponderate against the findings of the trial court. We hereby affirm
the judgment of the trial court dismissing the Mixes petition for adoption.4
Conclusion
Based on the foregoing analysis, we affirm the trial court’s finding that Father had
not abandoned Son, and that it would not be in Son’s best interests to terminate Father’s
parental rights. We further affirm the dismissal of the Mixes’ petition for adoption. This
case is remanded to the trial court for such other and further proceedings as may be
necessary and consistent with this opinion. Costs are taxed to the appellants, for which
execution may issue if necessary.
HIGHERS, J.
CONCUR:
FARMER, J.
4
In light of our affirmance of the judgm ent of the trial court, w e de cline to address the issue of whether
the appellants perpetrated fraud by stating in their petition for adoption and in their amended petition for
adoption that the father of the child in question was unknown. Although appellee properly raised this issue,
it has b eco m e m oot.
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HAYES, J.
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