In Re Michael B.M.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 11, 2015 Session
IN RE MICHAEL B. M., ET. AL.1
Appeal from the Circuit Court for Knox County
No. 128701 Hon. Gregory McMillan, Judge
No. E2014-02481-COA-R3-JV-FILED-JANUARY 29, 2016
This action concerns a petition for custody filed by the maternal grandmother of three
minor children. The juvenile court denied the petition, and the circuit court affirmed the
denial on appeal following a de novo hearing. The maternal grandmother now appeals to
this court. We dismiss the appeal in light of the adoption of the children during the
pendency of this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed;
Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Jamie F., Knoxville, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter, and Rebekah A. Baker, Senior
Counsel, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children‟s Services.
OPINION
I. BACKGROUND
Michael B. M., Adrian L. B., and Mary K. B. (collectively “the Children”) were
born to Christian M. (“Mother”) in March 2008; March 2011; and December 2012,
respectively. Mother identified either Marquas O. or Caleb J. as the father of Michael
1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties. While this case concerns a custody petition, we will adhere to the
aforementioned privacy policy because the parental rights of the parents to the minor children at issue
were also terminated during the pendency of the action.
and Mario B. as the father of Adrian and Mary. At some point, Mother left the Children
in the care of her stepmother, Jamie. F. (“Grandmother”). In December 2012,
Grandmother filed a petition for custody of the Children, alleging that the Children were
dependent and neglected by Mother. Mary was included in the petition even though she
was not yet born. While Grandmother filed the petition, the Children actually resided
with her and the maternal grandfather, Daniel L. (“Grandfather”) (collectively
“Grandparents”). Mother later executed a letter in which she purported to award
temporary custody of Michael and Adrian to Grandmother and to relinquish her parental
rights of Mary and award custody to Grandmother.
On March 21, 2013, a hearing was held before the juvenile court magistrate, who
ordered Grandmother to provide a list of her prescription medication and Grandfather to
“provide proof . . . regarding the safety of the [Children] while in his care.” Despite the
magistrate‟s order, Grandfather refused a drug screen. One week later, another hearing
was held before the juvenile court magistrate. Upon discovering that the Children were
in the unsupervised care of Grandfather, the magistrate ordered Grandmother to retrieve
the Children and return to court within the hour. Upon her return with Grandfather and
the Children, Grandfather vomited in the lobby of the courthouse. Thereafter, the
magistrate entered a bench order requiring the Children to be delivered to the Tennessee
Department of Children‟s Services (“DCS”) for immediate protective custody, finding
probable cause that the Children were dependent and neglected and that placement with
Grandparents was not suitable in light of Grandfather‟s violent criminal history and
refusal to provide a drug screen and Grandparents‟ use of prescription medication. The
Children were placed into foster care.
Grandmother amended her petition for custody to include information concerning
Grandfather‟s involvement. She alleged that she suffered from permanent hearing loss
and that Grandfather was willing to provide assistance with the Children when necessary.
However, she claimed that Grandfather was also willing to live elsewhere if required by
the court. She noted that Grandfather would submit to drug testing and consent to the
release of his psychiatric records and criminal history. She acknowledged that Jessica L.,
Grandfather‟s daughter, had accused him of sexual abuse. She asserted that he was
willing to undergo a psychosexual profile and abide by any recommendations.
On May 24, 2013, another hearing was held before the juvenile court magistrate.
Following the hearing, the magistrate adjudicated the Children as dependent and
neglected as a result of Mother‟s unresolved substance abuse issues and current criminal
issues. The magistrate noted that the respective putative fathers could not be located.
Relative to the custody petition, the magistrate found that it was not in the best interest of
the Children to place them with Grandmother. The magistrate stated,
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As to the petition for custody and the amended petition for custody filed by
[Grandmother], the [c]ourt finds the following based upon the testimony
and evidence presented:
That [Grandparents] are married and reside in the same home; that this is
the second marriage for both parties; that [Grandfather] has reported
conflicting information to [DCS] as to his relationship to [Mother], at one
point identifying her as one of his three biological children and at another
point reporting that she was already born before he became involved with
his first wife . . . ; that [DCS] has previously indicated [Grandfather] for
“sex abuse/exploitation” and “drug exposed child” in an investigation
involving [Jessica] . . . who is currently in foster care in Blount County,
Tennessee; that [Grandfather] has a criminal record; that [Grandfather] has
completed a psycho-sexual assessment which indicated a moderate risk to
reoffend; that [Grandfather] has received mental health services through
Cherokee and is currently in counseling . . . and receiving medication
management through Helen Ross McNabb [for an extensive amount of
medication] . . . ; that [Grandmother] has received mental health services
through Cherokee in the past and is currently receiving counseling . . . and
reports she receives medication for anxiety, depression and pain . . . ; that
Colvin Idol, who completed assessments on [Grandparents] stated in his
report that “the interviewer cannot recommend them as ideal parents or
grandparents”; that at the time of filing her petition, [Grandmother]
completed a sworn Application for Temporary Legal Custody which failed
to list [Grandfather] as residing in her home and failed to reveal her prior
involvement with the police and failed to reveal [Grandfather‟s] prior
involvement with the police, the [c]ourt system and [DCS].
The magistrate also found that those supervising Grandparents during visitation reported
inappropriate conversations between Grandparents and the Children and that Grandfather
appeared under the influence during his supervised visitation.
Grandmother appealed the magistrate‟s decision. The juvenile court confirmed
the magistrate‟s findings and transferred the action to the Knox County Fourth Circuit
Court for a de novo hearing. Pending the hearing, the circuit court awarded Grandparents
supervised visitation. The court later suspended Grandfather‟s supervised visitation for
failure to follow visitation protocol.
A hearing on the petition for custody was held on September 22, 2014. Mother
stated that she was amenable to transferring custody of the Children to Grandmother.
She denied ever observing inappropriate behavior by Grandfather. She provided that she
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currently resided with Grandparents and confirmed that Grandfather no longer lived in
the residence. She denied ever objecting to Grandfather‟s presence in the home or to
Grandparents‟ supervised visitation with the Children.
Marquas testified that he was amenable to transferring custody of Michael to
Grandmother. He provided that he currently resided with Grandparents and confirmed
that Grandfather no longer lived in the residence.
Terry Taylor, Grandmother‟s sister, confirmed that Grandfather no longer lived in
Grandmother‟s residence. She provided that she supervised the Children on occasion and
claimed that the Children never reported that Grandparents behaved inappropriately.
Sally Hines testified that she initially sought custody of the Children. She
provided that Grandfather was unsuitable as a caregiver because he was reliant upon
prescription pain medication.
Grandparents testified as to their relationship with the Children. Grandmother
provided that she provided care for the Children for the majority of their respective
lifetimes and that their absence would be detrimental to her well-being. She explained
that the Children helped her recover from the loss of her own daughter. Grandfather
attested that he loved the Children and would do anything for them.
Grandmother denied lying on her initial petition for custody. She explained that
Grandfather lived with his brother at the time she filed her petition and that they
remained separated for approximately three months. She agreed that she did not inform
DCS that they were separated during the initial home visit. She acknowledged that they
separated solely to allow her to acquire custody of the Children. She explained that
Grandfather was a “good man” and was “good to [the Children].”
Grandmother acknowledged that she had been arrested for shoplifting and
contributing to the delinquency of a minor. She explained that the charges were later
dismissed. She denied any prior involvement with DCS. She agreed that DCS entered a
no contact order against Grandfather prohibiting him from contacting his minor daughter,
Jessica, based upon allegations of sexual abuse. She agreed that she allowed Mother and
Marquas to reside in her home, despite their instability.
Grandfather confirmed that he was separated from Grandmother and no longer
lived in the same residence. He agreed that a no contact order had been entered against
him concerning Jessica in March 2010. He acknowledged his lengthy criminal history
and provided that he spent approximately 13 years in prison. He also acknowledged that
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he used numerous prescription medications but provided that he recently quit taking his
medication for bipolar disorder because the medication made him act “loony.”
Jessica denied that Grandfather ever touched her in an inappropriate manner. She
acknowledged that she had previously reported that he had sexually abused her. She
admitted that Grandmother asked her to testify and transported her to the court hearing.
Enoch Colvin Idol, a licensed professional counselor, testified that he provided an
alcohol and drug assessment on Grandparents and a psycho-sexual risk assessment on
Grandfather. He recalled that Grandfather reported that he resided in the same residence
as Grandmother for at least ten months prior to the assessment in April 2013. He found
that Grandfather was at a moderate risk level for reoffending according to the psycho-
sexual risk assessment. He explained that Grandfather possessed a lengthy criminal
history, including an aggravated rape charge that had been reduced to a lesser offense.
He said that Grandfather reported that he had experienced serious psychological and
emotional issues within the past 30 days prior to the assessment. Relative to the alcohol
and drug assessments, he stated that neither Grandmother nor Grandfather presented a
need for treatment for drug use because they were taking medication as prescribed.
However, he could not recommend them as a proper placement for the Children based
upon their mental health diagnoses and use of prescribed opioids for medical ailments.
Four social workers testified concerning their interaction with Grandparents.
Kelly Myers, a DCS employee, testified that she performed the initial home study in
response to the petition for custody. She recalled that Grandparents were present for the
study and never advised her that Grandfather lived in another residence. She could not
recommend Grandparents as a proper placement based upon Mr. Idol‟s assessment,
issues pertaining to prescription medication, and her interaction with Grandfather, who
appeared to be under the influence of “some kind of substance.” She noted that
Grandfather had been indicated by DCS for sexual abuse of Jessica. She recalled that
Grandfather was confused as to the number of his biological children and initially
reported that Mother was not his biological child. She stated that she was also present for
a few supervised visitations. She reported that Grandparents whispered with the Children
and that Grandfather slurred his words and appeared drowsy.
Ellen Mayner, a Helen Ross McNabb employee, testified that she supervised
approximately five visitations, beginning in March 2013. She reported that every visit
presented a cause for concern. She explained that Grandparents whispered with the
Children, used their cellular telephones, paid more attention to Mary, called themselves
“Mommy” and “Daddy,” left the approved visitation area, raised their voices, and used
inappropriate language. She asserted that Grandfather would “stumble” and “slur his
words.” She agreed that she was unaware as to whether he was under the influence of
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prescribed medication or illegal medication. She explained that he could not care for the
Children without assistance even if he were taking medication as prescribed. She
provided that she could not recommend placement of the Children with Grandparents
based upon her supervision of them.
Scott Williams, a Helen Ross McNabb employee, testified that he supervised
approximately four visitations, beginning in January 2014. He characterized the quality
of visitation as “strange” and reported that Grandparents referred to themselves as
“Mommy” and “Daddy,” despite his repeated redirection. He recalled that Grandparents
also whispered with the Children, allowed them to sit on their laps, and told the Children
that they planned to take them on vacation.
Tiffany Murray, a DCS employee, testified that she began supervising
Grandparents‟ visitation with the Children in March 2014. She reported that
Grandparents had improved in their behavior but asserted that she still had cause for
concern. She reported that Grandfather placed Mary on his lap, despite prior instruction
to refrain from such behavior. She also recalled that Grandfather referred to himself as
“Daddy” and appeared under the influence. She acknowledged that Grandfather had
been indicated for a drug exposed child and sexual abuse of Jessica in 2009.
Ms. Murray testified that DCS had begun termination proceedings and had already
terminated Caleb and Mario‟s parental rights. She reported that Mother recently tested
positive for opiates, Methadone, and Oxycodone and that Marquas had tested positive for
THC. She expressed concern for the Children if they were placed in a home where
Mother and Marquas were allowed to reside. She recalled that Mother and Marquas
objected to the placement of the Children with Grandmother.
Following the presentation of the above evidence, the circuit court denied the
petition for custody, finding that it was not in the best interest of the Children to award
custody to Grandmother. The court found that the testimony presented by Mother and
Jessica pertaining to the Children‟s potential for harm while in Grandfather‟s care was
not credible. Grandmother filed a timely notice of appeal. During the pendency of the
appeal, Mother‟s parental rights to the Children were terminated. Marquas‟s parental
rights to Michael were also terminated. The Children were adopted on May 27, 2015.
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II. ISSUES
Grandmother raised an issue on appeal that we consolidate and restate as follows:
A. Whether the trial court erred in denying the petition for custody.
DCS raised an issue on appeal that we consolidate and restate as follows:
B. Whether any issue pertaining to the denial of the petition for custody
is now moot in light of the Children‟s adoption.
III. STANDARD OF REVIEW
We review a trial court‟s findings of fact de novo with a presumption of
correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P.
13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Because the trial court is in
the best position to observe witnesses and evaluate their demeanor, we afford great
deference to a trial court‟s credibility determinations. Hughes v. Metro. Govt. of
Nashville and Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). We review questions
of law de novo with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665,
670 (Tenn. 2006).
In matters of child custody, trial courts are vested with broad discretion, and
appellate courts will not interfere with the trial court‟s decision except upon a showing of
erroneous exercise of that discretion. See Whitaker v. Whitaker, 957 S.W.2d 834, 836-37
(Tenn. Ct. App. 1997). “„Because [c]ustody and visitation determinations often hinge on
subtle factors, including the parents‟ demeanor and credibility during . . . proceedings,”
appellate courts “are reluctant to second-guess a trial court‟s decisions.‟” Hyde v.
Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App.
Oct.12, 2010) (quoting Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)).
IV. DISCUSSION
A. & B.
As a threshold issue, we must address DCS‟s assertion that any issue pertaining to
the denial of the petition for custody is now moot in light of the Children‟s adoption.
“An issue becomes moot if an event occurring after the commencement of the case
extinguishes the legal controversy attached to the issue, or otherwise prevents the
prevailing party from receiving meaningful relief in the event of a favorable judgment[.]”
City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) (citations omitted).
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Accordingly, “[t]o be justiciable, an issue must be cognizable not only at the inception of
the litigation but also throughout its pendency.” Id. (citation omitted).
A biological parent‟s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the Due Process Clauses
of the Federal and State constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk
v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn.
Ct. App. 2001). While this right is fundamental, it is not absolute. State v. C.H.K., 154
S.W.3d 586, 589 (Tenn. Ct. App. 2004). It continues without interruption only so long as
a parent has not relinquished it, abandoned it, or engaged in conduct requiring its
limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); In re
S.M., 149 S.W.3d 632, 638-39 (Tenn. Ct. App. 2004).
It is true that Grandmother parented the Children for a significant period of time.
However, she never possessed any constitutional rights to the Children. Any proceeding
in which she sought to obtain custodial rights to the Children was automatically
suspended upon the filing of the adoption petition. Tenn. Code Ann. § 36-1-116(f)(2).2
Once adopted, the Children became “the lawful [children] of [the adoptive] parents, the
same as if [they] had been born to the [adoptive] parents, for all legal consequences and
incidents of the biological relation of parents and children.” Tenn. Code Ann. § 36-1-
121(a). Additionally, upon entry of the adoption order,
the adoptive parents shall not thereafter be deprived of any rights in the
child[ren], at the insistence of the . . . biological or prior legal parents or
guardian of the child[ren] or any other person or agency except in the same
manner and for the same causes as are applicable in proceedings to deprive
biological or legal parents or guardians of their children or wards as
provided by law.
Tenn. Code Ann. § 36-1-122(a). With these considerations in mind, we hold that any
issues pertaining to the denial of Grandmother‟s custody petition are rendered moot in
light of the Children‟s adoption.
2
“[A]ny proceedings that may be pending seeking the custody [of a child] who is in the physical custody
of the petitioners on the date the petition is filed, or where the petitioners meet the requirement of § 36-1-
111(d)(6), shall be suspended pending the court‟s orders in the adoption proceeding, and jurisdiction of
all other pending matters concerning the child and proceedings concerning establishment of the paternity
of the child shall be transferred to and assumed by the adoption court; provided, that until the adoption
court enters any orders affecting the child‟s custody or guardianship as permitted by this part, all prior
parental or guardian authority, prior court orders regarding custody or guardianship, or statutory authority
concerning the child‟s status shall remain in effect.”
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V. CONCLUSION
This appeal is dismissed, and the case is remanded to the trial court for collection
of costs assessed below. Costs of the appeal are taxed to the appellant, Jamie F.
_________________________________
JOHN W. McCLARTY, JUDGE
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