IN RE Austin J. ( 2020 )

03/13/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 7, 2020 Session
IN RE AUSTIN J.
Appeal from the Chancery Court for Marshall County
No. 18300 J. B. Cox, Chancellor
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No. M2019-00781-COA-R3-PT
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This appeal arises from a petition to terminate the parental rights of a father to his child
for the purposes of adoption. The petitioners, the child’s mother and her new husband,
alleged that the father had abandoned the child both by willfully failing to visit and by
willfully failing to support. Following a trial, the court concluded that the petitioners had
failed to show that the father’s failures to visit or to support were willful. So the court
dismissed the petition. On appeal, the petitioners contend that the evidence was clear and
convincing that the father willfully failed to support his child. After a review of the
record, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.
Debbie Zimmerle Boudreaux and Walter Bussart, Lewisburg, Tennessee, and Matthew
Wilson, Mississippi State, Mississippi, for the appellants, A.P. and B.P.
Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellee, A.J.
OPINION
I.
A.
Austin J. was born to unwed but cohabitating parents, A.P. (“Mother”) and A.J.
(“Father”). When the child was approximately eight months old, Father robbed a bank
and was incarcerated without bond. During the course of Father’s trial, Father and
Mother married. But Father and Mother would never live together again. In November
2010, a federal court sentenced Father to 84 months of custody and four years of
supervised release.
In 2015, in the Chancery Court of Marshall County, Tennessee, Mother filed for
divorce; at the time, Father was still serving his prison sentence. In October 2016, the
court entered a divorce decree naming Mother as the primary residential parent, but
anticipating Father’s supervised release, the court awarded Father twelve days of
parenting time a year, which were to be supervised by Mother.
Despite his incarceration, Father had some contact with Austin. Father’s parents
and occasionally Mother made the four and one-half hour drive so that Austin could visit
Father in prison. Mother also took Austin to visit Father during his stay in a Nashville
halfway house, and Father visited when he could get a “pass” to leave the halfway house.
But after Father’s March 1, 2017 release from the halfway house, problems with
visitation soon developed.
One of those problems related to Father’s family and Mother’s sister from whom
Mother was estranged. Father’s brother had married Mother’s sister, and the court found
“many issues concerning the use of illegal drugs and arrest” made it not in Austin’s best
interest to be in their presence. Father also acknowledged that his mother had a prior
history of drug use. So there were concerns over who might be present while Father
exercised his visitation.
Another problem was Mother’s and Father’s strained relationship. Although both
had met other people, they still interacted for visitation, just not well. Mother
complained that Father requested visitation without or on short notice, ignored
communications from Mother, and failed to show up for scheduled visits. Although the
court ordered that Mother supervise Father’s visitation, Father countered that Mother
“always wanted to just basically tell me when I’m going to be here, when I’m going to be
there.”
A series of events in the summer of 2017 resulted in the relationship worsening to
the point of court intervention. A burglary and vandalism at the home Mother shared
with her boyfriend led her to contact Father’s probation officer.1 In August, Father and
Mother could not agree on a new location for a visit after Father decided the previously
agreed location was unacceptable. Later that month, Father’s discovery of Mother’s
contact with his probation officer led to a heated phone call. A couple of days after the
1
Mother later testified that she contacted Father’s probation officer at the suggestion of the
sheriff’s deputy who investigated the burglary and vandalism.
2
call, Mother obtained an ex parte temporary order of protection for herself and Austin
against Father.
Both Mother and Father hired attorneys. With the assistance of counsel, Mother
and Father reached an agreement on a restraining order, which was exceedingly broad.
The order provided that, for a period of one year from September 20, 2017, Father “and
his agents are hereby enjoined and restrained from any and all contact with [Mother],
specifically from coming about, harassing, following, stalking, molesting, calling,
texting, and/or disturbing her at any place she may be or under any circumstances, either
directly or indirectly.”
B.
Also in September 2017, Mother married her boyfriend, B.P. (“Stepfather”).
Together, on December 21, 2017, they filed a petition to terminate Father’s parental
rights to Austin and for adoption by Stepfather. Mother and Stepfather alleged that
“Father last paid child support for the minor child in July of 2017” and that he had
“provided no other financial support . . . during the 4 months preceding the filing of the
[p]etition.” They also alleged that Father “had no contact, physical or otherwise, with the
minor child” for more than the four months immediately preceding the filing of the
petition.
At trial, several witnesses in addition to Mother, Father, and Stepfather testified.
On the issue of Father’s visitation, Mother testified that Father’s last visitation prior to
the petition to terminate occurred on June 4, 2017. From Mother’s perspective, the visit
seemed to go well. But after the visit, Mother learned that Father may have had Austin
around Father’s mother and his brother during the course of the visit.
Although there were plans for visits following the June 4 visit, they did not occur
for varying reasons. Father called Mother on July 1 asking for a visit that day, but
Mother objected due to the lack of notice. Mother also complained about Father not
following up on the rescheduling of a Father’s Day visit from the previous month. Father
did speak with his child by telephone the day Austin had dental surgery in the middle of
the month.
Mother and Father agreed to a visit to take place on August 13 at a local
restaurant. When the day for the visit came and Mother notified Father she was on her
way to the restaurant, Father requested that the visit take place at a park. Mother
explained that a health condition prevented her from being outside in the heat. According
to Mother, she asked if there was anywhere else they could meet, but Father refused to go
anywhere else.
3
In September, Father made an effort to schedule visitation through his counsel.
But Mother declined the request. Apparently Father had already filed a petition seeking
visitation, and Mother felt that Father should seek visitation through the court. Mother
also claimed that, although the agreed restraining order might prevent Father from
contacting her about visitation, Father could contact Stepfather to arrange for visitation.
On the issue of Father’s child support obligation, Mother testified that the last
check she received from Father before the petition to terminate was in July. Father
testified that, when the no contact order was entered, he began forwarding his child
support payments to his attorney. A January 2018 letter from Father’s counsel stated it
enclosed a “trust account check made payable to [Mother’s] order in the amount of
$1,236.00, representing child support payments from August, 2017, through January,
2018.” Mother acknowledged receiving the check.
The trial court denied the petition to terminate Father’s parental rights. The court
concluded that Mother and Stepfather had failed to meet their burden of proving either
ground for termination by clear and convincing evidence. On visitation, the court found a
pattern of Father attempting to see his child. When the restraining order was entered,
Father attempted to arrange for visitation through his attorney and pursued “a legal
proceeding to expand his visitation.” On support, the court found that Father had paid
child support to his attorney after entry of the restraining order. Father’s attorney held
the payments in anticipation of a visitation hearing and subsequently delivered them to
Mother’s counsel after the filing of the petition.
II.
A.
Based on both the federal and State constitutions, a parent has a fundamental right
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d
at 250. Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. See Tenn. Code
Ann. § 36-1-113(g) (2017).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for
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termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010). This heightened burden of proof serves “to minimize the
possibility of erroneous decisions that result in an unwarranted termination of or
interference with these rights.” Id. “Clear and convincing evidence” leaves “no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established. In re Bernard T., 319 S.W.3d at 596.
On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
B.
Mother and Stepfather’s sole contention is that the trial court erred in concluding
that Father’s failure to pay child support was not willful. In light of Father’s
abandonment of Austin by willful failure to support, they request that we remand the case
to the trial court for a determination of whether termination is the child’s best interest.
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The parental termination statutes give
alternative definitions for “abandonment.” Id. § 36-1-102(1)(A) (2017) (amended 2018).
At the time Mother filed the petition for termination, “abandonment” included “the
willful failure to visit, to support, or to make reasonable payments toward the support of
the child during the four-month period preceding the filing of the petition to terminate
parental rights.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013); see
also Tenn. Code Ann. § 36-1-102(1)(A)(i).2
2
In 2018, the Legislature amended Tennessee Code Annotated § 36-1-102(1)(A)(i) to delete the
word “willfully” from the first definition of “abandonment.” See 2018 Tenn. Laws Pub. Ch. 875 (H.B.
1856) (effective July 11, 2018). Under the current version of the statute, lack of willfulness is an
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While the failure to support presents a question of fact, whether that failure is
willful presents a question of law. In re Adoption of Angela E., 402 S.W.3d at 640 (citing
In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). A “[f]ailure to . . .
support a child is ‘willful’ when a person is aware of his or her duty to . . . support, has
the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). A failure to
support may be excused by the conduct of another if “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 . . . the child.” Id. (internal
citations omitted).
Here, because the petition to terminate parental rights was filed on December 21,
2017, the relevant four-month period is August 21, 2017, to December 20, 2017. See In
re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App.
Feb. 20, 2014) (concluding that the day before the petition is filed is the last day in the
relevant four-month period). The parties acknowledge that Mother received no support
payment during the relevant period. Instead the court found that Father had made his
support payments to his attorney.
Mother and Stepfather contend that the court never found that Father made his
support payments during the four-month period to his attorney. Instead, they contend
that the court found that the Father made payments at some point after the entry of the
restraining order, which could have been after the filing of the petition to terminate. The
implication is that Father “caught up” on his support payments that were due during the
relevant four-month period only after the petition to terminate was filed.
The trial court’s memorandum opinion is susceptible to the interpretation placed
on it by Mother and Stepfather. But as their counsel conceded at oral argument, the
opinion also could be read as finding that Father made his child support payments to his
counsel during the four-month period preceding the petition to terminate. When an order
or judgment is susceptible to more than one interpretation, “it should be construed with
reference to the issues it was meant to decide and should be interpreted in light of the
context in which it was entered, as well as the other parts of the record, including the
pleadings, motions, issues before the court, and arguments of counsel.” Morgan Keegan
& Co., Inc. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013) (internal citations omitted).
We accept the interpretation that Father made support payments during the four-
month period preceding the petition to terminate because such a finding is consistent with
the proof. When asked if he recalled sending a check in the month of August 2017,
affirmative defense to a claim of abandonment for failure to visit or failure to support. Tenn. Code Ann.
§ 36-1-102(1)(I) (2018).
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Father testified, “I sent her a check every month.” When Father was then asked if he sent
Mother a check in September 2017, Father testified, “I sent the checks to my attorney.”
The trial court credited Father’s testimony on this issue, and we find no basis to overturn
the court’s credibility determination. See Richards v. Liberty Mut. Ins. Co., 70 S.W.3d
729, 733-34 (Tenn. 2002) (“[F]indings with respect to credibility and the weight of the
evidence . . . may be inferred from the manner in which the trial court resolves conflicts
in the testimony and decides the case.”); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779,
783 (Tenn. 1999) (To the extent the trial court’s determination rests upon an assessment
of the credibility of witnesses, the determinations will not be overturned absent clear and
convincing evidence to the contrary.).
Next Mother and Stepfather argue that, even if Father made his support payments
to his attorney, he had no excuse for doing so. As they note, the trial court concluded that
the restraining order “did not apply to the child and never did.” So “Father could have
delivered the checks to his son, via US Mail, without violating the [restraining order].”3
Mother and Stepfather also contend that Father’s attorney could have delivered the
checks to Mother’s attorney during the four-month period.
Having reviewed the restraining order agreed to by the parties and considered its
scope, the order did represent a significant restraint of or interference with Father’s
efforts to support Austin. The restraining order “enjoined and restrained” Father “and his
agents . . . from any and all contact with [Mother] . . . either directly or indirectly.” We
can understand the desire of Father, as a convicted felon on supervised release, to avoid
any possibility of violating the court’s order and to act with caution.
Under the circumstances, we do not find it unreasonable for Father to send his
support checks to his attorney for handling. And we cannot conclude that Father’s failure
to pay support was willful. While the checks should have been forwarded immediately to
Mother’s counsel, Father’s counsel acknowledges that it was error on his part in not
doing so. The record does not support a finding that Father instructed his attorney to
withhold the support.
III.
We conclude that the evidence was less than clear and convincing that Father
abandoned his child by the willful failure to pay support during the four-month period
preceding the filing of the petition to terminate parental rights. Because Mother and
Stepfather failed to prove by clear and convincing evidence a statutory ground for
termination of parental rights, we affirm the dismissal of their petition.
3
The ex parte order of protection is not included in the record, but Mother testified that the order
of protection included Austin.
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W. NEAL MCBRAYER, JUDGE
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