In Re Serenity L.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 8, 2015
IN RE: SERENITY L.
Appeal from the Juvenile Court for Washington County
No. 14655 James A. Nidiffer, Judge
No. E2014-02475-COA-R3-PT-FILED-JULY 31, 2015
Christina L. (―Mother‖) and Ian C. (―Father‖) appeal the termination of their parental
rights to the minor child Serenity L. (―the Child‖). We find and hold that the Juvenile
Court for Washington County (―the Juvenile Court‖) did not err in finding that clear and
convincing evidence existed of grounds to terminate Mother‘s parental rights pursuant to
Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i) for abandonment by willful
failure to visit and by willful failure to support and § 36-1-113(1)(A)(iv) for wanton
disregard; and to terminate Father‘s parental rights pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and § 36-1-102(1)(A)(iv) for wanton disregard and § 36-1-113(g)(9) for failure
to manifest the ability and willingness to assume custody, risk of substantial harm, and
failure to establish paternity. We further find and hold that the Juvenile Court did not err
in finding that clear and convincing evidence existed that it was in the Child‘s best
interest for Mother‘s and Father‘s parental rights to be terminated. We, therefore, affirm
the termination of Mother‘s and Father‘s parental rights to the Child.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Christina L.
Sandy Phillips, Johnson City, Tennessee, for the appellant, Ian C.
Janie Lindamood, Johnson City, Tennessee, Guardian ad Litem.
Russell J. Kloosterman, Johnson City, Tennessee, for the appellee, Julie V.
OPINION
Background
The Child was born in January of 2013. Mother was incarcerated at that time.
Just prior to her birth, the Child was adjudicated dependent and neglected. After her
birth, the Child was released from the hospital to the custody of Julie V. The Child has
remained in Julie V.‘s exclusive custody since that time.
In February of 2014, Janie Lindamood, the Child‘s guardian ad litem, and Julie V.
filed a petition seeking to terminate the parental rights of Mother and Father to the Child
(―the Petition‖). The case was tried in November of 2014.
The parties stipulated at trial that the relevant four month statutory period as to
Mother‘s rights was September 28, 2013 to January 28, 2014. It was stipulated that
Father was incarcerated from January 29, 2013 through trial, and the parties stipulated
that the relevant four month period for Father was September 29, 2012 to January 29,
2013.
Sandra Rawls, Father‘s probation officer, testified at trial. Ms. Rawls was Father‘s
probation officer from when Father was placed on probation on May 25, 2012 until his
probation was revoked and he was ordered to serve his sentence on February 19, 2014.
Ms. Rawls explained that Father was placed on probation on May 25, 2012 in
Washington County Criminal Court for possession of drug paraphernalia, simple
possession of Schedule II, possession of Schedule II with intent to sell, driving on
revoked license, and simple possession of Schedule III. Ms. Rawls testified that Father
reported for intake on June 8, 2012. She stated that he was an hour and thirty minutes
late for his appointment and that he argued with staff about the probation rules and kept
staff in the office after regular business hours.
Father tested positive for cocaine on July 19, 2012. He also failed to make a
payment on his probation fees and his court costs. Ms. Rawls testified that Father did not
have a job and did not complete any community service. She stated that a violation
warrant was issued on August 3, 2012 due to Father‘s positive drug test of July 19, 2012.
Father‘s probation was revoked on October 4, 2012 and later reinstated with no change of
the sentence expiration date of May 23, 2021.
Father was arrested on January 18, 2013 for driving on a suspended license.
Father pled guilty to that offense on March 13, 2014 and was placed on unsupervised
-2-
probation for five months, twenty-nine days, which was to run concurrent with his
criminal court cases.
Ms. Rawls testified that Father committed the offenses of resisting arrest and
possession of cocaine for resale on January 29, 2013. A violation warrant was issued for
Father‘s three new offenses on February 1, 2013. The charges of possession of cocaine
for resale and resisting arrest were dismissed on February 19, 2014, but Father‘s
probation in the criminal court cases was revoked and Father was ordered to serve 8
years, 11 months, and 29 days in the Tennessee Department of Corrrection.
Ms. Rawls testified that at the time of trial on the Petition Father did not have any
future action dates scheduled until August 1, 2016 and that as of November 5, 2014,
Father‘s sentence expiration date is April 14, 2019.
Father testified at trial. He testified that while Mother was pregnant with the
Child, she told Father that it might be his child or the child of another man. After the
Child was born Father received a photo of the Child on his phone and then received a
phone call from Mother, who was in jail, telling him that the Child might be his child.
Mother gave Father Julie V.‘s phone number. Father testified that he contacted Julie V.
on the day he received the number. Father testified:
I called, I don‘t know if I called or texted, but I talked to Julie and I asked
her if I could see [the Child]. She told me no, ‘cause the judge said
something, and then she told me that I don‘t need to worry about it because
she took, she took [the Child] to the pediatrician and the pediatrician said
the baby was white.
Father insisted that Julie V. told him that he did not need to worry about it.
Father admitted that prior to going to jail he told his sister and his mother that the
Child might be his child. The Child was born on January 16, 2013. Father was
incarcerated on January 29, 2013. Father admitted that he was not incarcerated until
thirteen days after the Child was born and that he was notified of the Child‘s birth within
days of the birth. Father admitted that he has no relationship with the Child.
Father did not pay anything toward prenatal or birthing expenses while Mother
was pregnant with the Child. Father provided Mother with no support during Mother‘s
pregnancy. Father admitted that he never has provided any support for the Child to
Mother or to Julie V.
-3-
Father filed a petition seeking to establish paternity on September 13, 2013.
Father was asked if he took any action to establish paternity within 30 days of the Child‘s
birth, and he stated: ―I was in jail. . . . No.‖ Father, however, then admitted that he still
was in jail when he filed the petition to establish paternity in September of 2013.
Father testified that he was employed with ACT prior to his arrest. Father could
not recall how long he had worked for ACT. Father was asked how long before his
incarceration he was fired from ACT, and he did not know. Father admitted that he had
income available to him before he went to jail.
Father testified that he did not smoke before he went to jail, but that he did drink
beer and liquor. He testified that his sister paid for the beer and liquor. Father testified
that he was living with his mother prior to going to jail. He was asked if he paid rent to
live with his mother, and Father stated: ―I had a little bit of money saved up when I had a
job, so I gave that to her.‖ Father testified that he could not recall how much money he
gave to his mother because it had ―been almost two years ago, two, three years ago.‖
Father was asked if he paid for the drugs he had in his possession when he was
arrested, and he stated: ―No. . . . I was never actually with any drugs on my person.‖
Father was asked if the drugs were in his vehicle, and he stated: ―But I wasn‘t driving in
2013. That‘s two different incidents. My driving on revoked license is a different
incident from when I was arrested for the resisting arrest, two different incidents.‖ Father
was asked where the cocaine was located when he was arrested in January of 2013, and
he stated that it was on the ground. Father stated that he also was on the ground because
he had been tazered. Father was asked if there was anybody else around at that time, and
he stated: ―No.‖ He was asked if the cocaine fell off his person, and he stated: ―No.
They found it near where I was at.‖ Father testified that when he was tazed the cocaine
just happened to be lying on the ground close to him.
Father testified that he was not a cocaine dealer and that he did not use cocaine.
Father then admitted that he ―used it once. That‘s what I failed my drug test for.‖ Father
was asked how much the cocaine he used cost, and he stated: ―I‘m not sure.‖ Father was
questioned further about the cocaine, and the following exchange of questions and
answers occurred:
Q. Now it‘s your testimony here today that you never used cocaine but one
time?
A. Correct.
-4-
Q. And you acknowledge that you tested positive for cocaine in 2012 when
that violation of probation [sic]?
A. Correct.
Q. And the eight year sentence that you‘ve been convicted for, in that you
were charged with possession of cocaine, as well as possession for resale or
re-manufacture?
A. Correct.
Q. You still want to stick to that testimony that that was the - - you‘ve only
used cocaine one time?
A. Correct.
Q. All right. I guess you were innocent when you got that eight year
conviction?
A. I guess I‘m not if I‘m doing eight years.
Father admitted that he has a disciplinary write-up for fighting on October 28,
2013. Father pled guilty to the write-up for fighting. He was asked if he had a history of
propensity for violence, and Father admitted that he had ―a simple assault.‖
Father admitted that he ―probably did say‖ that the Child looked very much like
another one of his children, and so he knew that it was a possibilty that the Child was his
child. Father was twenty-three years old at the time of trial and had three children
including the Child.
Father admitted that after the Child was born he exchanged text messages with
Julie V. on January 23, 2013, and that during that text exchange he was advised that he
would need to establish paternity if he wanted to see the Child. Father admitted that he
responded by texting that he would call his attorney the next day. Father admited that the
text exchange occurred before he went to jail, and Father stated that he ―came to jail,
what, five days later?‖ Father also admitted that during that text exchange he was
advised that the case was in the Johnson City Juvenile Court before Judge Sharon Green,
but that he did not try to contact the court.
Raymond Chismar, an investigative officer who works for the Tennessee
Department of Correction, testified at trial. Mr. Chismar did a presentence report on
-5-
Mother for the offense of theft over $500. Mother was sentenced to one year of
probation for that charge. When asked if he met with Mother, Mr. Chismar testified:
I did not. Upon reviewing the file I did see what happened with her
probation. . . . It looks like she was sentenced to one year of supervision
for theft over 500 in Case 36415 and I found a revocation order which
states that [Mother] never showed up at our office for any sort of
community supervision and she was later revoked for absconding from
probation and for some new charges and was ordered to serve one year in
the TDOC.
The revocation occurred on May 13, 2014. Since the revocation, Mr. Chismar and his
office are no longer in charge of supervising Mother, and they have had no dealings with
Mother since the revocation.
Susan Holshue, a registered nurse, testified at trial. Ms. Holshue does volunteer
work for CASA and was assigned to this case in approximately May of 2014. Ms.
Holshue did a home visit with Julie V. She also spoke with Mother at the courthouse the
last time the parties came to court. This was the only time Ms. Holshue met with Mother.
Ms. Holshue never met with Father.
Ms. Holshue testified: ―[Mother] called me a couple of times when it was – when
she had requested visitation through the court and we spoke about how she needed to get
more paperwork updated where the judge had allowed her visitation.‖ Ms. Holshue
explained that these calls happened about one month prior to trial. She stated: ―It was
after we had been to court and she asked about visiting and the judge said that we would
keep the order as it was last fall and the court lady wanted a more update [sic] approval
for court visit, for the Court Clinic visitation.‖
Ms. Holshue was asked what she found with regard to Mother, and she stated: ―It
was very difficult to contact her. A couple times I called and got a message on the phone
number. Can‘t remember exactly what it said but might have said the mailbox is full or
this number has no more minutes. And sometimes it went, just rang and never picked
up.‖ Ms. Holshue stated that Mother had given her a couple of phone numbers and that
Mother had the CASA card with the information for how to contact Ms. Holshue.
Ms. Holshue was asked where Mother resided, and she stated: ―I don‘t know her
to reside any particular place. She told me she was residing with a friend and then when I
tried to verify that I couldn‘t verify that information.‖ Ms. Holshue never was able to
verify where Mother was living. Ms. Holshue was asked what else she learned about
Mother, and she stated: ―Well, I knew she‘d had some violations and that she was in jail
-6-
here in Johnson City when, at last court, and then I had heard she had gone to Carter
County.‖
Ms. Holshue was asked what Julie V.‘s house was like, and she stated: ―Well
taken care of, clean, plenty of clothes for [the Child] and appropriate toys.‖ Ms. Holshue
described the relationship between the Child and Julie V. stating: ―Very close
relationship. And even when I was there she wanted to show me around the house. She
was a very friendly little kid. Had been well taught.‖ Ms. Holshue testified that the
Child and Julie V. appeared loving toward one another. Ms. Holshue was asked if she
thought that removing the Child from Julie V.‘s custody would harm the Child, and she
stated: ―That‘s the only place [the Child] has ever known as home, so yes, I think it
would harm her.‖
Julie V. testified that she is not related by blood to either Mother or Father. Julie
V. has known Mother all her life, and the two call each other cousins even though they
are not related by blood. Julie V. explained that she has custody of the Child because,
when Mother gave birth, Mother requested that Julie V. go to court and file a petition for
custody so that the Child would not go into State custody. Julie V. was not present when
Mother gave birth, but arrived shortly afterward and remained until the Child was
released from the hospital. The Child was released from the hospital into Julie V.‘s
custody and has remained in Julie V.‘s exclusive custody since that time. The Child was
almost two years old at the time of trial. Julie V. testified that the Child is meeting all of
her milestones.
Julie V. testified that she is financially able to provide for the Child. Julie V. is
employed at Independent Living Solutions, and she stated that she was graduating soon
and had contracted with Modern Women of America for a financial position. Julie V. has
received no financial contribution of any sort from Father or Mother. Julie V. also has
received no gifts for the Child from Mother or Father.
Julie V. is not married. She resides in a three bedroom house with her boyfriend,
Aaron E., his daughter, and the Child. The four have resided together since February of
2013. The Child calls Julie V. ―Mom.‖ The Child calls Julie V.‘s boyfriend ―Daddy.‖
The Child has had a parental relationship with Julie V.‘s boyfriend since the Child was
one month old. Julie V. testified that she never has been arrested or convicted of
anything and there is no criminal activity in her home. She testified that her boyfriend
also never has been arrested and has no criminal convictions. Julie V. testified that she
has good family support from her parents, grandparents, aunts, and uncles. The Child
calles Julie V.‘s parents ―Nana‖ and ―Papaw Jimmy.‖
-7-
Mother had no visitation with the Child between September 28, 2013 and January
28, 2014. Mother had the right to exercise visitation with the Child during that time
period through the Court Clinic. Julie V. testified that the Court Clinic did set up a
visitation and the Child was present but Mother never showed up for that visitation.
Mother did have a visit with the Child between the time of the previous court
hearing and trial. This visit occurred at McDonald‘s. Mother showed up to the visit
approximately ten minutes late. Forty minutes after the visitation started the woman
supervising the visitation called Julie V. and asked her to come pick up the Child. Julie
V. and her boyfriend both went to pick up the Child. Julie V. testified:
When we returned they were outside playing. [The Child] kept trying to
come over to me and [Mother] handed her to me. We walked in and then
she seemed, she seemed like she was going to be able to stay and play a
little more. [The Child] seemed like she was going to be able to play a little
more, so they sat down in the booth behind, actually directly in front of me.
I was facing them. And [Mother‘s] eyes were barely open. She turned to
point at something in the Play Place and she was slurring her words and
obvious, to me, that she had taken something. . . . When she was looking,
she‘d turn to the side, was looking up and her eyes were only halfway open.
. . . It continued through the remainder of the visitation. . . . Probably
twenty or thirty minutes after we got there.
Mother did have three visitations with the Child that occurred outside of the
relevant four month period. Julie V. testified:
When [the Child] was first born [Mother], [Mother] called every day for
maybe, I don‘t know exactly how long. But that was it. There‘s not,
there‘s not been - - maybe a few conversations. I don‘t exactly remember.
Not many conversations, no. . . . No, but any time [Mother] talked to me
she didn‘t ask about [the Child]. She would call to yell at me or argue with
me or ask me why did I do this, or she just don‘t understand. It was never
about the child.
Julie V. was asked about the three visitations that Mother had with the
Child outside of the relevant four month period, and she stated:
Okay. The first one was, I don‘t remember the exact date; it was shortly
after [the Child] was born. I went to go to pick [Mother] up, brought her to
my mother‘s house. She was there for two or three hours. She never held
the child and she stayed on the phone or texted the entire time. Even if she
-8-
did hold her, I don‘t recall that she did except for maybe a couple of
pictures, but she talked to my mom for the whole time.
This visit occurred shortly after Mother was released from jail in April. Julie V. testified:
The next visit was a few months later, I don‘t recall the exact date, but it
was at McDonald‘s and she, [the Child] was still in a carrier so she was still
really small. And I took her to McDonald‘s and we sat in the Play Place
and she looked at her and talked to her and played with her a little while.
We were there about an hour and then we left.
Julie V. testified:
The third visit was at Rotary Park and . . . Rotary Park was in July. I think
it was towards the end of July. I don‘t know the exact date. But that was
after a court hearing and Judge Green said - - that‘s when Judge Green said
to give the regular visitation ‘cause before then it was just whenever the
mother would call for whenever she wanted to see her. I took her to the
park and every time I would try to get close to her she would take the baby
off further away. I couldn‘t keep, couldn‘t keep them hardly in my
distance, in my sight. And then she only came back when she needed a
diaper. And at that visit she took [the Child] to a van of people that I did
not know and as far as I knew, I didn‘t know what they were doing. I
didn‘t know the people. All I knew is that there were several other people
that had come to this visitation. It wasn‘t just her, like the visitations were
supposed to be. So when we left the visit that day, first thing Monday
morning I called the court, I spoke with Charlene Davenport and she
expedited Janie Short to be able to do the visitations because I no longer
felt comfortable to do that.
Julie V. was asked if the court already had ordered the Court Clinic to be involved
in the visitations, and Julie V. stated: ―Yes, she‘d already ordered . . . the Clinic but she
said I would do this one until the Court Clinic became available and that‘s why they
expedited Court Clinic to become available immediately.‖
Julie V. would like to adopt the Child if she becomes available for adoption. Julie
V. testified that the Child is bonded to her. She stated: ―Well, she‘s constantly at my feet.
If I take a step she takes a step. We do everything together. Sometimes she goes to work
with me. She‘s – if I‘m anywhere she wants to be there. We read books together. She
constantly gives me hugs and kisses.‖ Julie V. believes that it would harm the Child if
she were taken from Julie V.‘s custody and given to Mother. She stated:
-9-
[Mother] doesn‘t have a permanent home, so [the Child] wouldn‘t know
where she‘s going to sleep from night to night. In my home she has a bed.
You say, let‘s go to bed. She knows which room to go to. . . . [Mother]
doesn‘t, [Mother] does not live a lifestyle that is conducive to having a
toddler.
Julie V. was asked if she loved the Child, and she stated: ―Yes, very much.‖ She
also testified that her boyfriend loves the Child and that the Child loves both her and
Aaron E. Julie V. testified that Aaron E.‘s daughter was ten years old at the time of trial
and that she and the Child are like sisters and are ―crazy about each other.‖ Julie V.
thinks it would be detrimental to both the Child and Aaron E.‘s child if they were
separated. She stated: ―[The Child] has to tell [Aaron E.‘s daughter] good night every
single night, give her a kiss. And if she‘s not there for some reason we call and let her
tell her goodnight over the phone.‖
Aaron E. testified that he was thirty-nine years old at the time of trial. Aaron E.
has worked as an officer of the court for approximately eight years. Aaron E. was asked
what kind of relationship he has with the Child, and he stated: ―She‘s a part of my family.
She, Julie lives with me. We call her [the Child], but [the Child‘s] a part of my family.
She‘s very close to my daughter who‘s ten. There‘s no other way to say it, that she‘s a
part of my family.‖ Aaron E. testified that he loves the Child.
Aaron E. testified about the last visitation between Mother and the Child. This
was the visit that took place on a Sunday afternoon in October at McDonald‘s. The visit
was scheduled to be between 3:00 p.m. and 5:00 p.m. Aaron E. accompanied Julie V.
and the Child to the visit, and they arrived around 2:45 p.m. Mother arrived at 3:07 p.m.
Aaron E. testified that when Mother arrived ―she was fine‖ and ―friendly‖ and was not
demonstrating any signs of being under the influence. The visit was supervised by Janie
Short through the Court Clinic. A few minutes after Mother arrived, Aaron E. and Julie
V. left. Approximately one hour later Julie V. received a call from Ms. Short asking her
to come back. So Julie V. and Aaron E. went back to the McDonald‘s. They located
Mother, the Child, and Ms. Short outside in a grassy area and the entire group went back
inside the McDonald‘s and sat down. Aaron E., Julie V., and Ms. Short sat at one booth
and Mother and the Child sat in a booth behind where Ms. Short sat. Aaron E. was
facing Mother and the Child from where he was sitting. Aaron E. was asked if Mother
was still ―fine‖ and he stated:
No, Ma‘am. Her - - she was speaking to [the Child] and her speech was
very slurred, and if I remember right she was asking her about if she liked
her chicken nuggets or liked her Happy Meal and her speech was very
-10-
slurred and her eyes were kinda rolling, kinda to the left and to the right and
her eyelids were very heavy and she was kind leaned, leaned over to the
side in her, in the booth, in the seat. . . . [T]hat‘s the way she was the rest
of the visit. . . . I think we may have stayed another fifteen mintues or so,
maybe twenty. It wasn‘t long. We didn‘t stay for the full, for the full hour
after we got back. I think it was about another fifteen or twenty minutes, if
that.
Aaron E. testified that Mother asked for the visit to be ended early.
Aaron E. was asked if he thought it would be in the Child‘s best interest to be
returned to the custody of Mother or Father, and he stated:
My opinion is that it would absolutely be detrimental. Julie is that child‘s
mother without a doubt. That‘s who she runs to for security. If she bumps
her toe that‘s where she goes. That is her mom and it would absolutely be
detrimental for [sic] to be anywhere else. I believe that with all my heart.
Aaron E. was asked if he thought it would be detrimental for the Child to be separated
from his daughter, and he stated: ―Yes. Absolutely. She loves [my daughter]. You
know, that‘s her big sister and [my daughter] loves her. I mean, regardless, that - - she‘s
our family. Two years is a long time.‖ He was asked if he intended to remain a part of
the Child‘s life, and he stated: ―Absolutely.‖
Mother was late for trial and when asked about it she stated that she had written
the date down for a different day. Mother stated: ―I‘m always on time at court.‖
Mother testified that she lives with her mother and has since she was released from
jail. Mother was released from jail in April of 2013. She stated that she had lived with
her mother continuously since her release. Mother was asked about a court order that
found she was bouncing back and forth between her mother‘s home and her sister‘s
home, and she stated: ―Yeah, they was living, like right down the street from each other
and my sister worked and I‘d just go there and babysit and I‘d stay there sometimes and .
. . . But not permanently, I didn‘t permanently live with her.‖
Mother testified that she was employed at KFC for a little over a month. Mother
was asked if she lived with her mother while she was working at KFC, and she stated: ―I
was living with Misty Buck. She‘s a friend of the family.‖ Mother was asked why she
testified that she was living with her mother non-stop and then stated that she was living
with Misty Buck, and she stated: ―Not non-stop through since she was born. I didn‘t - -
-11-
when she was - - when I was first released after she was born I lived with Misty for just a
couple of months until I went back to my mom‘s.‖
Mother was asked again about her statement that she lived with her mother since
her last release in October of 2014. Mother was asked why she gave Misty Buck‘s
address as the place where she was living during the last court hearing. Mother stated: ―I
- - all of my mail and everything is still sent to her address. . . . It‘s the address that‘s still
on my identification card.‖ Mother was asked how many times she had resided with
Misty Buck during the last two years, and Mother stated: ―Maybe three.‖ Mother was
asked how many times she has lived with her mother during that time period, and she
stated: ―Of the times that I‘m not living with Ms. Buck.‖ Mother then was asked about
living with her sister, and she stated ―I never said I lived with my sister.‖
Mother admitted that she knew where the Child was but that she never sent any
money for the care of the Child. She stated: ―I asked Julie many times if she needed
anything and she always said no.‖ Mother was asked why she did not get the Child a
birthday present, and she stated: ―I‘m not allowed to - - I mean, if I would‘ve been
allowed to see her or I don‘t even know, besides Julie‘s phone number I have no other
way of contacting anybody or anything. . . . I knew who she was living with but not
exactly where they - - I don‘t know exactly where Julie lives.‖ Mother admitted that she
knew that the Child was her child and that she was responsible for the Child but that she
never paid any support for the Child during the relevant four month period. Mother also
admitted that since the petition was filed she has paid no child support and has given the
Child no gifts.
Mother was asked when the last time was that she held a job, and she stated:
―Before I was incarcerated I was at ACT,‖ for ―[a] couple months. You know, just a
month and a half.‖ Mother admitted that she smokes ―a couple [cigarettes] a day,‖ and
that she purchases ―[m]aybe a pack a week.‖ Mother was asked if she would be clean if
she were drug tested that day, and she stated: ―I‘m prescribed Subutex and Klonopin.‖
Mother presently is on house arrest ―[m]onitoring through ACCP.‖ Mother was asked
who lives in the house with her, and she stated that her mother and her two nephews do.
Mother earned $7.50 per hour when she worked at KFC. Mother admitted that she
is able-bodied and that there is nothing preventing her from working. Mother was asked
if she drank alcohol and went out partying, and she stated: ―I went out a couple of times.‖
Mother admitted that she paid for her drinks. Mother testified that TennCare pays for her
Subutex but that she pays for her doctor‘s visits. Mother admitted that she is supposed to
pay $100 per week for the doctor‘s visits. Mother was asked where she gets the money to
pay this expense, and she stated: ―Either my sister or . . . . Mainly my sister.‖ Mother
-12-
admitted that she had the ability to pay support for the Child during the relevant time
period.
Mother was pregnant at the time of trial. Mother has two other children by
different fathers. Neither of these two children are in Mother‘s care. The older one lives
with the father‘s mother and the other lives with friends of the family. Mother never has
had any of her rights terminated as to any of her children. Mother was asked if she
visited her other children, and she stated: ―Not recently. Not since I‘ve been out.‖
Mother was asked if she paid child support for her other children, and she stated: ―No,
sir. I‘m not ordered to.‖ Mother stated:
If they need something, just like I said, Julie, I asked, I tried to and she
always said that she didn‘t need anything, that she was taking care of that,
was always the answer. There was clothes bought and Julie never took
them with her when she was first born and . . . .
Mother was arrested in Washington County on November 29, 2012. She was
transferred from Washington County to Carter County on April 24, 2013 and then
released on bond on April 26, 2013. While Mother was incarcerated in Washington
County she pled guilty to a write-up for having tobacco and tobacco paraphernalia. That
occurred months after the Child was placed in Julie V.‘s custody. Mother was arrested
for theft of property in Unicoi County on January 29, 2014. Mother was transported to
Carter County, released on January 31, 2014, and again was arrested in Carter County on
October 10, 2014 at which time her bond was revoked. Mother was released on October
28, 2014. Mother‘s charge of theft of property in April of 2013 and the charges in
January of 2014 in Carter County and Unicoi County occurred after the Child was placed
in Julie V.‘s custody.
Mother admitted that she has multiple theft charges. On June 22, 2013, after the
Child was born, Mother pled guilty to a charge of reckless endangerment because she had
marijuana in her system when she gave birth to another child. On June 27, 2013 Mother
pled guilty to theft over $500. Mother admitted that on June 27, 2013 she ―was charged
with aggravated robbery and burglary and pled to simple assault.‖
At the time of trial Mother had criminal charges pending in Carter County for theft
over one thousand dollars and possession of stolen property. Mother wrote a letter to the
judge in connection with those charges in which she claimed she had straightened up and
had a stable permanent home. Mother was asked where that home was, and she stated it
was with her mother. Mother then was asked why she does not use her mother‘s address
as her address but instead has testified on multiple occasions that she resides with Misty
Buck, and Mother stated: ―I have before. . . . Not in the last year.‖
-13-
Mother‘s pending charges are felony charges and she was unsure if she would
have to serve jail time. Mother was asked if she was on house arrest and she stated: ―On
bond on one thing through the house arrest office. But I‘m not on house arrest. I don‘t
have to stay at my house all day. I just have to report to them once a week.‖
Mother agreed that she did not have a significant relationship with the Child.
Mother admitted that her lifestyle at the time of trial was not an appropriate lifestyle for
the Child to grow up in. Mother admitted that the Child was in a good placement with
Julie V. She further admitted that Julie V. has provided for the Child financially and has
met all of the Child‘s needs and that the Child and Julie V. are bonded. Mother admitted
that she cannot provide the Child with stability and permanency. Mother was asked if
she wanted to surrender the Child, and she stated: ―I think she‘s best with Julie right now
but I don‘t think it should be permanent.‖ Mother agreed that it would be upsetting for
the Child if she were removed from Julie V.‘s custody and given to Mother immediately.
Mother was asked about the visit that occurred at McDonald‘s, and Mother
testified that she was not intoxicated or under the influence. Mother admitted that during
the relevant time period visitations were set up for her and the Child but that Mother did
not attend those visits. She stated: ―I didn‘t - - no, I hadn‘t spoken to her during that
time.‖
Mother was asked if she were the same person now as she was when she was
incarcerated and the Child was born, and she stated: ―Yeah. Whenever she was first
born. Like I didn‘t actually start, like the whole Subutex thing, none of that started until
after all the problems, you know, with the Court Clinic and all that.‖
Mother admitted that she does not have a vehicle. She was asked if she had a
license, and she stated: ―It‘s paid off. I just have to go take the test.‖ Mother then was
asked if her license still was suspended, and she stated: ―No. I just have to go take the
test.‖
Mother was asked whether a drug test would show anything in her system other
than the medicines she was prescribed if she were drug tested on the day of trial, and she
stated: ―I mean, I failed for marijuana but it‘s been almost a month. . . . It‘s been almost
a month though. It was at house arrest yesterday and it wasn‘t.‖ Mother was
approximately eight months pregnant at the time of trial.
After trial the Juvenile Court entered its Final Order of Termination of Parental
Rights on December 3, 2014 terminating Mother‘s parental rights to the Child pursuant to
Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i) for abandonment for willful
-14-
failure to visit and willful failure to provide support and Tenn. Code Ann. § 36-1-
102(1)(A)(iv) for wanton disregard, and terminating Father‘s parental rights to the Child
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-
102(1)(A)(iv) for wanton disregard and Tenn. Code Ann. § 36-1-113(g)(9) for failure to
manifest ability and willingness to assume custody, risk of substantial harm, and failure
to establish paternity. In its detailed Final Order of Termination of Parental Rights the
Juvenile Court found and held, inter alia:
[Father], the putative father, is properly before the court. As earlier
discussed, [Father‘s] attorney, Ms. Sandy Phillips, filed an Answer to the
Petition on the day of the hearing. Though incarcerated at the time of the
hearing on the Petition to Terminate Parental Rights, [Father] was
transported from the jail and appeared before the court during the entire
proceeding.
[Mother] is properly before the court. As stated herein, [Mother‘s]
attorney, Ms. Jessical McAfee, filed an Answer to the Petition three days
prior to the hearing. [Mother] was present for the afternoon session of the
hearing on the Petition to Terminate her Parental Rights; however, she was
excessively and inexcusably tardy. In fact, [Mother] failed to attend the
morning session in its entirety, providing no legitimate explanation for her
absence.
***
FACTS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE AS
TO MOTHER
Pursuant to a Johnson City Juvenile Court Order filed on July 29, 2013,
[Mother] was afforded supervised visitations through the ETSU Court clinic. Clear
and Convincing Evidence shows that [Mother] was present at the court hearing on
June 3, 2013 — the day on which the Juvenile court [sic] granted and ordered
supervised visitation through the Court Clinic. The mother was present at the court
hearing on June 3, 2013, at which time the court granted and ordered supervised
visitation through the Court Clinic.
For the Court‘s review, Ms. Janie Short, Director of the First Judicial Court
-15-
Clinic, prepared a report and a letter for the Mother. The report and letter were
submitted into evidence as Collective Exhibit 5. The evidence showed that the
ETSU Court Clinic arranged an intensive supervised visitation schedule for
[Mother] and the minor child, with nine visits scheduled between August 24, 2013
and October 26, 2013. Despite the numerous opportunities to visit with her minor
child, [Mother] was invariably a ―no call no show.‖ What‘s more, [Mother] made
no contact with Janie Short for one year. In September 2014, [Mother] contacted
Ms. Short, who — despite the mother‘s track record — arranged a two-hour
supervised visit for September 21, 2014.
On the day of the scheduled visit, [Julie V.] and [Aaron E.] arrived with the
child at McDonalds [the designated place of visitation] several minutes early.
[Mother] arrived at 3:07 p.m., nearly ten minutes past the scheduled
commencement time. As the visit progressed, Ms. Short became increasingly
concerned about the sobriety of [Mother]. Upon [Mother‘s] request, the visit was
prematurely terminated. Ms. Short has had no contact with [Mother] since the
September 21, 2014 visitation.
[Aaron E.], who was present at the visit on September 21, 2014, testified
that he observed part of the visitation. [Aaron E.] testified that he observed
[Mother] slouching in a booth, slurring her speech, and nodding in and out of
consciousness. [Aaron E.] stated that the mother appeared to be under the
influence. In an attempt to discredit the testimonies regarding [Mother‘s] sobriety
during the visit, Jessica McAfee - - attorney for [Mother] -- introduced pictures of
the mother and child taken during the visit in which [Mother] did not appear
intoxicated. [Aaron E.] testified that the pictures were an inaccurate depiction of
[Mother‘s] sobriety insofar as still photographs fail to capture things such as eye
movements.
It was established by the testimony of [Julie V.], that the mother did not visit
or ask to visit the child for an appreciable time period.
It was established by clear and convincing evidence that the mother could
have visited during the time that she was not incarcerated when visits could have
been enjoyed. Nevertheless, visits were scheduled for her and she did not
appear.
[Mother] acknowledged and testified that she failed to visit the child during
the relevant four-month period, September 28, 2013 through January 28, 2014.
Despite overwhelming evidence to the contrary, [Mother] maintained that her
failure to visit was not of her own volition, but rather, the fault of the ETSU Court
-16-
Clinic Program. The record does not support [Mother‘s] contention. Rather, the
evidence attributes the missed visitations to [Mother‘s] lack of cooperation with
the ETSU Court Clinic Program, and thus, discredit [sic] [Mother‘s] testimony.
It was established by clear and convincing evidence that the mother
abandoned the minor child by willfully failing to support the minor child in the four
months prior to any incarceration. Period [sic]. September 30, 2013 until January
29, 2014 are the stipulated dates.
[Julie V.] testified that she received no form of child support during the
applicable time (September 30, 2013 until January 29, 2014), nor has she received
any form of child support since that date.
At the hearing, [Mother] testified that she was able to work and, did in fact,
work for a period of time at Kentucky Fried Chicken. Further, Mother testified
that despite her ability to pay child support during the time in question, she failed to
do so. Instead, the mother used her earnings for her own needs and wants.
The four-month period prior to the filing of this Petition, rises to statutory
abandonment.
All parties to this proceeding agree that [Mother] has never paid child
support, including the four-month time frame in question. [Mother] testified that
she was never ordered to pay child support to the Court. Despite her contentions,
the record reflects that the Johnson City Juvenile Court set an order of child
support. Although [Mother] was not present at said hearing, she was given
sufficient notice of the order. Acting within the scope of her authority as an agent
for and on behalf of [Mother], [Mother‘s] attorney at the time, Laurel Farrell,
signed the order. As a result, [Mother‘s] assertions that she was unaware of her
obligation to pay child support lack merit.
In accordance with the record and witness testimony, this Court finds that
the Mother‘s conceded failure to visit and support the child during the four-month
period preceding the filing of the termination Petition was willful. The Petitioners
have proven by clear and convincing evidence that the Mother willfully failed to
visit, support, and otherwise maintain any relationship with the child for a
minimum of four consecutive months immediately preceding the filing of the
Petition for termination. The Mother‘s failure clearly and convincingly shows a
lack of effort or interest in having any relationship with the child, and accordingly,
constitutes abandonment under T.C.A. §36-1-102.
-17-
***
This court finds that there is evidence sufficient to support a finding that the
Mother engaged in conduct exhibiting wanton disregard for the child‘s welfare.
[Mother‘s] refusal to tend to the physical, emotion [sic], and medical conditions of
the child, coupled with her recreational drug use and abuse while pregnant, her
propensity for engaging in criminal activity, and her periodic incarceration,
constitutes conduct amounting to wanton disregard for her child‘s welfare.
Pursuant to a Johnson City Juvenile Court Order filed on July 29, 2013,
[Mother] was afforded supervised visitations through the ETSU Court clinic. Clear
and convincing evidence shows that [Mother] was present at the court hearing on
June 3, 2013 — the day on which the Juvenile court [sic] granted and ordered
supervised visitation through the Court Clinic.
***
It was established by the testimony of [Julie V.], that the mother did not visit
or ask to visit the child for an appreciable time period. Furthermore, it was
established by clear and convincing evidence that the mother could have visited
during the time that she was not incarcerated when visits could have been enjoyed.
Nevertheless, visits were scheduled for her and she did not appear.
It was established by clear and convincing evidence that the mother
abandoned the minor child by willfully failing to support the minor child in the four
months prior to any incarceration. Period [sic]. September 30, 2013 until January
29, 2014 are the stipulated dates.
[Julie V.] testified that she did not receive any form of child support during
the applicable time (September 30, 2013 until January 29, 2014), nor has she
received any form of child support since that date.
During the hearing, the Mother, . . . testified that she not only was capable
of working, but that she was in fact, employed at Kentucky Fried Chicken. Further,
mother testified that despite her ability to pay child support during the time in
question, she failed to do so.
The above referenced order provides that [Mother] has paid no child support
for the child. The hearing that generated the said order was held on February 19,
2014. The order was approved by the attorney for [Mother], and a copy was
mailed to the putative father on the 25th day of February, 2014, as states the
-18-
certificate of service.
The said order of February 19, 2014, was never appealed and thus, is a final
order in this matter. The current attorney, Ms. Jessica McAfee, for [Mother], states
that the order has no effect on [Mother] since the certificate of service does not
show it was mailed to [Mother], however, her previous attorney approved the order
on behalf of [Mother], and therefore, [Mother] is bound by its provisions.
At trial, [Mother] testified that, since the birth of the minor child, [the Child]:
1) She has lived at multiple residences; 2) She has lived with her Aunt at least three
times; 3) She has lived with her mother and sister also during relevant times; and 4)
She never established a stable home for herself to take the child.
[Mother] explicitly admitted and implicitly acknowledged her inability to
achieve and maintain a lifestyle conducive to the best interests of the child. In short,
[Mother‘s] current [sic] reeks of instability and volatility. Accordingly, it is
established by clear and convincing evidence that the mother — who has
demonstrated an inability to obtain stability for herself alone — is wholly and
completely incapable of providing a safe and stable home for the child at this time.
During trial, [Mother‘s] comprehensive criminal records were entered into
evidence as Collective Exhibit 1; Collective Exhibit 6; and Collective Exhibit 10.
The mother‘s criminal record is as follows:
i. 37843 - Wash Co. Reckless Endangerment - child born addicted drugs
ii. 36415 - Wash Co. Theft over 500 (a crime of moral turpitude)
iii. 36957A - Wash Co - Assault (a crime of violence)
iv. 22406 - Carter Co - Pending-Fraudulent use of Credit Card over 1,000
v. and Theft of Property over 1,000. (a crime of moral turpitude)
State of Tennessee Probation and Parole Officer, Mr. Ray Chismar testified
that with respect to Docket Nos. 22406 and 22614, he conducted an investigation
and completed a pre-sentence report, which was submitted for the criminal court on
June 11, 2014. [sic] in regards to the mother on June 11, 2014 regarding Docket
Nos. 22406 and 22614.
It was established by the testimony that [Mother] was in Carter County
Criminal Court on October 10, 2014. At her appearance in the said criminal
court on October 10, 2014, she tested positive for Marijuana, Subutex and
Klonopin. As a result, the judge of the criminal court revoked her bond.
[Mother] was incarcerated until October 16, 2014.
-19-
[Mother] is currently pregnant with her fourth child, with an estimated
delivery date nearing the end of November 2014. [Mother] testified she smokes,
indulges in parties, and consumes illegal drugs. She also testified that, if given a
drug test on the day of the trial — she would likely test positive for Marijuana,
keeping in mind that she is currently pregnant.
The mother opined that her present lifestyle is not appropriate to provide a
safe and stable home for the child at this time.
An examination of the mother‘s records from the Washington County
Detention Center demonstrate that the mother was searched at the detention center,
and that she had illegal contraband on her person in the nature of tobacco products
and rolling papers.
It is established by clear and convincing evidence that the mother has not
visited as scheduled by the court clinic, nor has the mother paid child support.
Clear and convincing evidence was introduced at trial demonstrating the
mother‘s willful and wanton disregard for the welfare of this child.
It is by clear and convincing evidence that the mother has willfully failed to
visit, and she has willfully failed to pay child support.
It is shown by clear and convincing evidence that the mother‘s living
conditions include a state of homelessness, consistent drug use and her lifestyle is
motivated by criminal activity.
Based on the evidence of her most recent criminal conduct, [Mother] might
face incarceration in the very near future.
Because [Mother] has failed to maintain contact and visit with the child, she
has not established a meaningful parent-child bond with her child.
There is little evidence that the conditions that caused the removal of the
child will be remedied in the near future in order that the child could be returned to
either parent.
[Mother‘s] testimonial admissions, her lengthy criminal record, and the
testimony of other witnesses as to her failure to visit and support the minor child,
established by clear and convincing evidence that she willfully abandoned the child
-20-
in the the [sic] four-month period prior to the filing of this Petition. Not only does
[Mother‘s] conduct prior to incarceration exhibit wanton disregard for the welfare
of the child, but her repeated stents [sic] of incarceration indicate an
unwillingness to change.
GROUNDS FOR TERMINATION ESTABLSIHED AS TO MOTHER
This Court adopts its findings set forth above in the facts as to the mother
without delineating the same. By clear and convincing evidence, the court finds
that the evidence demonstrates that the mother‘s parental rights should be
terminated for her willful failure to visit with her child and her willful failure to
support her child. Both grounds exist due to the fact that the mother had
numerous opportunities to visit with her child and she did not, and she had
opportunities to pay child support or provide in kind support and she did not.
The mother states that she was never ordered to pay support, but as a
parent, the mother has a duty to support her child, and she earned money that she
used for her own devices, and was able to work to earn money for the support
of her child.
The court directed the mother to the court clinic to establish visitation times
with her child and she willfully failed to avail herself of the clinic‘s services. The
court does not find the mother‘s assertions that the clinic did not respond to her
appropriately concerning the visitation schedule is credible. In reality, if the
mother felt that the court clinic was not addressing her visitation concerns, the
mother should have petitioned the court for assistance. The record does not show
that the mother availed herself of returning to the court that ordered the visitation in
order to correct any problems that she may have had with the clinic.
Clear and convincing evidence entered demonstrates a willful and wanton
disregard for the welfare of this child. Again, the court adopts its findings that the
mother has lived at multiple residences. And, that the mother has lived with her
relatives multiple times, and she never established a stable home for herself to
take the child.
The mother‘s criminal record and her conduct while she has been
incarcerated speaks for itself, and is a clear indication that the mother‘s primary
interest is in her own wants and desires, and shows no interest in the child. It is
important to note that the mother is facing additional criminal charges, and
possible additional jail sentences.
-21-
[Mother‘s] extreme tardiness to the hearing on the petition to terminate her
parental rights, coupled with her failure to pay support and failure to visit her child,
establishes abandonment and wanton disregard by clear and convincing evidence.
B. STATUTORY GROUNDS FOR TERMINATING THE PARENTAL
RIGHTS OF THE PUTATIVE FATHER . . .
***
This court finds by clear and convincing evidence that [Father‘s] pre-
incarceration conduct, as well as his conduct while incarcerated, displays a wanton
disregard for the welfare of the child. Further, [Father‘s] criminal behavior that
resulted in his incarceration is indicative of a much broader pattern of conduct that
renders him unfit and poses a substantial harm to the welfare of the child. . . .
***
FACTS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE
AS TO THE FATHER
It was established by clear and convincing evidence that the putative father,
[Father], abandoned the minor child, [the Child], due to the fact that he was
incarcerated during the four month period prior to the filing of this Petition.
Moreover, [Father] engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child. The applicable time period being
September 30, 2013 until January 29, 2014[.]
There was evidence presented at the hearing that establishes that [Father]
was incarcerated on January 29, 2013. [Father] was incarcerated thirteen days
after the birth of the child. [Father] has remained incarcerated since January 29,
2013, and he was brought from the Washington County Detention Center in order
for him to participate at the hearing.
The following facts were stipulated at the trial:
A. On January 29, 2013, [Father] was arrested.
-22-
B. [Father‘s] criminal record was introduced at trial, at which time [Father]
testified to the authenticity of the certified criminal court judgments setting forth
his criminal history. He is currently serving an eight year sentence with a
scheduled release date of April 14, 2019 for Possession of Cocaine for resale, with
a consecutive 11 months and 29 day sentence for Driving of [sic] Revoked License,
Violation of Probation, and Resisting Arrest.
C. Both sentences of the above charges were entered on January 29, 2014 on a
violation of probation, resisting arrest, and possession of cocaine with the case
numbers being 36295, 36845, 37496B respectfully [sic].
Ms. Sandy Rawles, [Father‘s] probation officer, testified at trial concerning
[Father‘s] criminal court sentence. Ms. Rawles testified that [Father‘s] expected
release date was April 14, 2019. Ms. Sandy Phillips, attorney of [Father],
established via Ms. Rawles that it was possible for [Father] to be released earlier
based on good time and the like. The court would note that a scheduled time for
any early release is speculative at best, especially given the fact that [Father] has
already been a party to an altercation in the Washington County Detention Center
[for which he plead guilty and was found guilty in an ―in house‖ hearing at the said
detention center].
The evidence was established that [Father] received a picture of the minor
child on January 17, 2013. The evidence did not clearly establish who sent the
picture to [Father]; however, there is no dispute that [Father] did in fact speak to
the mother and his sister expressing that [sic] fact the child appeared to look like
one of his other children.
It was established by the evidence, that in [sic] January 17, 2013, [Father]
sent a text message to [Julie V.] requesting that he be allowed to visit with the
child. During the text messaging exchange, [Father] told [Julie V.] that the mother,
[Mother], had informed him that [Julie V.] would allow him [sic] visit with
the child.
In response to [Father], [Julie V.] informed him that there was a Court
Order in place and that if he wanted to visit with the child that he would need [sic]
contact the Johnson City Juvenile Court. Additionally, [Julie V.] advised that if
[Father] wanted to have access to the child that he would need to establish
paternity.
[Father] told [Julie V.] that the mother had informed him that the baby was
white. [Julie V.] stated to [Father] that the doctor did in fact state that the child
-23-
appeared white, but she went on to tell [Father] that you could not tell the color of
the child just by looking.
The text messages between [Father] and [Julie V.] were read one by one into
the record, and as each message was read, [Father] (under oath and called as a
witness) was asked to authenticate and to confirm each distinct feature of each of
the text messages.
[Father] testified that the mother had notified him of her pregnancy and that
he could possibly be the father of the child. The deoxyribonucleic acid (DNA) test
results were entered into evidence demonstrating the [Father] was the
biological father.
It was established by clear and convincing evidence that [Father] was on
notice that the child was or quite possibly could be his child even before the child‘s
birth. As testified to during the trial, [Father] had a picture of the child in question
of which he acknowledged that the said child at least resembled one of his other
children. [Father] did not file petition to establish paternity until the passage of
eight months after the child‘s birth, and an [sic] no order was ever entered
establishing paternity and legitimating the child. [Father] has never met the minor
child.
At the hearing, [Father] testified that he made certain inquiries as to how to
establish paternity. [Father] further testified that he had asked his sister, . . . , to
obtain the paperwork from Johnson City Juvenile Court in order that he could file
the appropriate papers to establish paternity. [Father] stated that his sister received
the paperwork that he needed to establish paternity. [Father] stated that he
completed the paperwork, and that he got the documents back to his sister.
[Father] testified that he maintained minimal contact with his sister.
However, during [Father‘s sister‘s] testimony, she testified that they spoke weekly.
[Father‘s sister] denied that her brother, [Father], asked her to obtain the proper
paperwork from the Juvenile Court for purposes of establishing paternity. Further,
she denied that she obtained any paperwork for [Father], but did acknowledge that
in 2014. [sic] she and her mother went to the Johnson City Juvenile Court to
determine why the deoxyribonucleic acid (DNA) testing had not been performed.
The testimony of [Father] and his sister are in direct conflict. The
credibility of [Father] is questionable, and causes the court some concern as to the
reliability of his testimony.
-24-
It is noteworthy that [Father‘s sister] testified that the mother sent [Father] a
picture of the child on January 17, 2014, which, at a bare minimum, gave [Father]
notice that he might be the father of the child.
At the present time, [Father] is incarcerated with a probable release date of
April 14, 2019. During his testimony, [Father] freely admitted that he could not
provide a safe and stable home for the child. [Father] cannot provide the child
with permanency. [Father] waited eight months to file a petition to establish
paternity and further, did not proceed to obtain an order legitimizing the child.
[Father] was on notice that the child was or could be his child, before her birth.
[Father] testified that he was in court on his criminal matters at least five times
prior to the filing of his petition but never asked the Court or his attorney about
filing to establish paternity.
This court doubts that the criminal court would ever attempt to advise
[Father] on how to establish paternity, and his criminal defense attorney (especially
if appointed) most likely would not have offered such advice. However, [Father‘s]
testimony was that he never inquired of his criminal attorneys about his paternity
matters at the time when he had the opportunity.
As previously stated, the deoxyribonucleic acid (DNA) test results do
demonstrate that [Father] is the likely biological father of the child (as to the degree
of certainty as contained in the DNA\Paternity testing); however, no court has ever
entered an order establishing paternity.
Again as stated, [Father] testified that at present he had no ability to provide
a safe and stable home for the child, and thus, he cannot offer the child
permanency due to his present incarceration. [Father] is serving an eight-year
sentence with a consecutive sentence of eleven months and twenty-nine days.
While [Father] did receive a picture of the child, he has never physically
seen or met the child, and further, has not established a parent and child
relationship with the child. Given the fact that [Father] has engaged in misconduct
while incarcerated, it is unlikely that he will be subject to an early release date. If
[Father] should serve his full prison term, the minor child will be six-years-old
before any relationship could possibly develop.
It is by clear and convincing evidence that the minor child has bonded with
[Julie V.], [Aaron E.], and [Aaron E.‘s] child. The child looks to [Julie V.] as her
mother, and looks to [Aaron E.‘s] daughter as her sister. The child has a loving,
stable home, and she enjoys a family relationship with the with [sic] [Julie V.‘s]
-25-
household family. [Julie V.] and her family offer the child love, stability, and
sense of permanency.
[Julie V.] testified that she is the one person that the child looks to when in
need of medical attention, or any need the child might have. [Julie V.] lives with
[Aaron E.], and [Aaron E.‘s] daughter, and the child. From the testimony of both
[Julie V.] and [Aaron E.], the court finds by clear and convincing evidence that the
child has reciprocally loving relationship [sic] with each respective family member.
Both children living in the [Julie V. & Aaron E.] household have formed a bond
such as if they were actual sisters.
It was the testimony of [Julie V.] and [Aaron E.] that it would be detrimental
to the child to remove the child from their care. Moreover, it would place the child
at a substantial risk of harm if custody of the child was placed with the putative
father. The Court agrees with this testimony, and the same is established by clear
and convincing evidence.
[Father‘s] criminal records indicate that his lifestyle is one of violence, drug
use, and illegal criminal activity. It will be noted by the court that [Father] was in
fact incarcerated since January 29, 2013, which is only 13 days after the child was
born.
All the findings set forth herein as to the mother, [Mother], and as to the
putative father, [Father], had been made by clear and convincing evidence.
The court would note that there is an order in the record from the Juvenile
Court of Johnson City, Tennessee, that finds that [Julie V.] has been the sole
financial support for the minor child. The said order also finds, that [Father],
putative father, is incarcerated and has never seen the child and has paid no
child support.
***
C. BEST INTEREST OF THE CHILD
The second prong for termination of parental rights is for the court to
determine if it is in the best interest of the child to terminate the parental rights of
[Mother] and the putative father, [Father]. The court finds by clear and convincing
-26-
evidence, that it is in the best interest of the child that all of the parental rights of the
mother, [Mother], and of the putative father, [Father], to [the Child], be forever
terminated, and that complete custody, control and guardianship be awarded to the
Petitioner, [Julie V.], with the right to place the child for adoption to consent to such
adoption in loco parentis.
There is clear and convincing evidence pursuant to T.C.A. 36-2-223(I) [sic],
that the mother and the putative father, have not made such an adjustment of
circumstances, conduct, and conditions as to make it safe and in the child‘s best
interest to be returned to the mother. The putative father is incarcerated and of
course, cannot establish a home for the child, and may not for a substantial
number of years.
The mother and the putative father have not provided reasonable child
support for the child, and the mother as stated herein, has taken income that she has
earned and used it for his [sic] own wants. The mother is able to work and support
the child, but, she has made the choice to not financially support her child. The
mother states that she has not been court ordered to support her child, but, this
court finds that the mother has a statutory duty to support, and she cannot rely on
the fact that a court has not imposed on her a specific child support obligation.
It is true that the putative father was incarcerated thirteen days after the
child was born, and thus, has not been in position to provide child support or visit,
and that he will quite possibly be in jail for a substantial amount of time.
The putative father‘s contention is that the mother was equivocal about the
child being his child. The putative father contends that perhaps that mother
secreted herself, and therefore, he could not pay any support for the child‘s prenatal
expenses, and could not pay any support before being confined to jail. Moreover,
the putative father asserted that he could not visit the child because of prior court
orders, and due to the fact that he had not been adjudicated the legal father.
The court finds by clear and convincing evidence the putative father‘s
condition of being incarcerated for the crimes delineated herein, and the jail terms
that he must serve is because of his own conduct, and therefore, shows a wanton
disregard for this child. Putative Father, [Father], never established a parental
relationship with the minor child, has never established parentage, and never
paid any support for the minor child.
[Father] failed to establish paternity within 30 days after notice of paternity;
has never paid prenatal care, birth expenses, has not established a relationship with
-27-
the minor child and has failed to manifest an ability and willingness to assume
legal and physical custody of the child. Moreover, [Father] has failed to grasp the
opportunity to assert his inchoate parental rights with regard to the child.
[Father] abandoned the minor child insofar as the [sic] was incarcerated in
the four month period prior to incarceration [sic] and engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.
Evidence was entered that establishes that [Father] was incarcerated on January
29, 2013, thirteen days after the birth of the child. [Father] has remained
incarcerated since that date. [Father], through his counsel, stipulated to these facts.
It is in the best interest of [the Child] and the public that this proceeding be
brought; that all of the parental rights of the mother, [Mother] and the putative
father, [Father], to [the Child] be forever terminated, and that the complete custody,
control and guardianship of [the Child] be awarded to [Julie V.], the current
custodian and perspective [sic] adoptive parent, with the right to place her for
adoption and to consent to such adoption in loco parentis.
[Father] and [Mother] have failed to effect a lasting adjustment of their life
styles and do not appear reasonably possible [sic] in the near future.
The putative father is incarcerated for a substantial period of time; the
mother looking at the possibility of a lengthy jail sentence, [sic]
The mother is pregnant and using illegal drugs, and Subutex and Klonopin.
The Mother has no permanent residence; has had at least five different residences
and multiple incarcerations since the birth of the child.
[Father] and [Mother] have no parent child relationship with the minor
child. [Father] has never seen or visited the child, and [Mother] has visited one
time since July 2013, which would not constitute even token visitation. [Mother]
has not requested of the court to correct any difficulties that she may have had with
the court clinic, even if her testimony was credible concerning any problems that
she may have had with the court clinic.
A change of caretakers and physical environment would be unquestionably
detrimental to the child‘s emotional, psychological and overall well-being.
[Mother] has not paid child support consistent with the child support
guidelines promulgated by the Department of Human Services pursuant to T.C.A.
36-5-101; and has not paid a reasonable portion of the child‘s substitute physical
-28-
care and maintenance when financially able to do so.
The minor is placed in a (kinship) foster home that wishes to adopt
the child. The home is appropriate, safe, stable and permanent home. There is a
strong parental child relationship between the custodian and child. The Custodian
has met all of the child‘s needs, physically, financially and provided love and
permanency[.]
It is important to note that the child has a tremendous bond with the
daughter of [Aaron E.], and that it would be detrimental to both children to remove
[the Child] from [Julie V.‘s] home. It is established by clear and convincing
evidence that both children view each other as siblings, and they have a strong
love for each other.
It is in the child‘s best interest for the termination to be granted because
neither the mother or putative father has [sic] not made changes in their conduct or
circumstances that would make it safe for the child to be returned to either one of
them, and neither or [sic] them has made lasting positive changes in their
lifestyle or conduct.
It is in the child‘s best interest for the termination to be granted because
there is not a true meaningful relationship between the mother and the putative
father and the child, and that changing the caregivers of the child at this time
would have a detrimental effect on the child.
It is in the child‘s best interest to terminate the parental rights of the
putative father and mother because they have neglected the child as set forth in the
history of these proceedings. The mother has never supported the child. The
mother and putative father have shown little or no interest in the welfare of the
child, and they have left the welfare of their child to others.
The child has established a strong bond with his [sic] current caregivers, and
the current caregivers have developed a strong bond with the child, and they wish to
adopt the child.
The court finds that all of the above findings have been based on clear and
convincing evidence.
As set forth herein, there is clear and convincing evidence that it is in the
best interest for the child, [the Child], to be made available for adoption.
-29-
OTHER FINDINGS
The court adopts and incorporates the above findings and facts as the basis for the
termination of the mother‘s and putative father‘s parental rights.
1. That the home of the current custodian, [Julie V.], meets the current needs of the
child. The home of [Julie V.] has and can continue to provide the minor child with
stability and continuity of care as well as meeting the child‘s physical, mental and
emotional needs.
2. That full legal and physical custody shall remain with the Petitioner, [Julie V.],
along with the authority to make decisions on behalf of the child, including
medical and educational decisions along with the authority to place the child for
adoption and to consent to such an adoption in loco parentis
3. That this decree and order shall have the effect of fully and forever terminating
all of the rights, responsibilities, and obligations of the mother and putative father
to [the Child] arising from the parental relationship, and that the mother and
putative father are not hereafter entitled to notice of future proceedings of any type
including adoption of the child by another not [sic] have any right to object to such
adoption or otherwise participate in any future proceedings.
4. That after hearing the testimony of [Julie V.], and [Aaron E.], the court finds
them very credible. . . .
Mother and Father appeal the termination of their parental rights to the Child to this
Court.
Discussion
Although not stated exactly as such, Mother raises four issues on appeal: 1)
whether the Juvenile Court erred in finding that clear and convincing evidence was
proven that grounds existed to terminate Mother‘s parental rights to the Child pursuant to
Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i) for abandonment by willful
failure to visit; 2) whether the Juvenile Court erred in finding that clear and convincing
evidence was proven that grounds existed to terminate Mother‘s parental rights to the
Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i) for
abandonment by willful failure to provide support; 3) whether the Juvenile Court erred in
finding that clear and convincing evidence was proven that grounds existed to terminate
Mother‘s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and §
36-1-102(1)(A)(iv) for wanton disregard; and, 4) whether the Juvenile Court erred in
-30-
finding that clear and convincing evidence was proven that it was in the Child‘s best
interest for Mother‘s parental rights to be terminated.
Father raises two issues on appeal, which we restate as: 1) whether the Juvenile
Court erred in finding that clear and convincing evidence was proven that grounds
existed to terminate Father‘s parental rights to the Child pursuant to Tenn. Code Ann. §
36-1-113(g)(1) and § 36-1-102(1)(A)(iv) for wanton disregard; and, 2) whether the
Juvenile Court erred in finding that clear and convincing evidence was proven that
grounds existed to terminate Father‘s parental rights to the Child pursuant to Tenn. Code
Ann. § 36-1-113(g)(9) for failure to manifest the ability and willingness to assume
custody, risk of substantial harm, and failure to establish paternity. Although Father does
not raise an issue regarding whether terminating his parental rights was in the best
interest of the Child, in the interest of completeness we also will address this issue.
Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:
This Court must review findings of fact made by the trial court de
novo upon the record ―accompanied by a presumption of the correctness of
the finding, unless the preponderance of the evidence is otherwise.‖ Tenn.
R. App. P. 13(d). To terminate parental rights, a trial court must determine
by clear and convincing evidence not only the existence of at least one of
the statutory grounds for termination but also that termination is in the
child‘s best interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)
(citing Tenn. Code Ann. § 36-1-113(c)). Upon reviewing a termination of
parental rights, this Court‘s duty, then, is 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).
In Department of Children’s Services v. D.G.S.L., this Court discussed the relevant
burden of proof in cases involving termination of parental rights stating:
It is well established that “parents have a fundamental right to the care,
custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.
1208, 31 L. Ed. 2d 551 (1972)). “However, 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.” Id. (citing
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
-31-
(1982)).
Termination of parental or guardianship rights must be based upon a
finding by the court that: (1) the grounds for termination of parental or
guardianship rights have been established by clear and convincing
evidence; and (2) termination of the parent’s or guardian’s rights is in the
best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a
parent’s rights can be terminated, it must be shown that the parent is unfit
or substantial harm to the child will result if parental rights are not
terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A.,
Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the
court may inquire as to whether termination of parental rights is in the best
interests of the child, the court must first determine that the grounds for
termination have been established by clear and convincing evidence. Tenn.
Code Ann. § 36-1-113(c).
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 WL
1660838, at *6 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. 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).
We first will address whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that grounds existed to terminate Mother‘s parental
rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i)
for abandonment by willful failure to visit.
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;
Tenn. Code Ann. § 36-1-113(g)(1) (2014). As pertinent to this issue, Tenn. Code Ann. §
36-1-102(1)(A)(i) provides:
-32-
(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 a
[sic] parent or parents or a guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
a [sic] parent or parents or a 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) (2014).
With regard to this issue the Juvenile Court found that Mother was afforded
supervised visitations through the ETSU Court Clinic, that Mother was present in court
on the day that supervised visitation was ordered, and that despite numerous
opportunities to visit with the Child Mother was ―invariably a ‗no call no show.‘‖ The
Juvenile Court further found:
It was established by the testimony of [Julie V.], that the mother did
not visit or ask to visit the child for an appreciable time period.
It was established by clear and convincing evidence that the mother
could have visited during the time that she was not incarcerated when visits
could have been enjoyed. Nevertheless, visits were scheduled for her and
she did not appear.
[Mother] acknowledged and testified that she failed to visit the child
during the relevant four-month period, September 28, 2013 through January
28, 2014. Despite overwhelming evidence to the contrary, [Mother]
maintained that her failure to visit was not of her own volition, but rather,
the fault of the ETSU Court Clinic Program. The record does not support
[Mother‘s] contention. Rather, the evidence attributes the missed
visitations to [Mother‘s] lack of cooperation with the ETSU Court Clinic
Program, and thus, discredit [sic] [Mother‘s] testimony.
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against the Juvenile Court‘s finding that clear and convincing evidence was
proven that Mother willfully failed to visit the Child during the relevant four month
period preceding the filing of the Petition.
-33-
We next address whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that grounds existed to terminate Mother‘s parental
rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i)
for abandonment by willful failure to provide support. In pertinent part, the Juvenile
Court found:
[Julie V.] testified that she received no form of child support during
the applicable time (September 30, 2013 until January 29, 2014), nor has
she received any form of child support since that date.
At the hearing, [Mother] testified that she was able to work and, did
in fact, work for a period of time at Kentucky Fried Chicken. Further,
Mother testified that despite her ability to pay child support during the time
in question, she failed to do so. Instead, the mother used her earnings for
her own needs and wants.
***
All parties to this proceding agree that [Mother] has never paid child
support, including the four-month time frame in question. [Mother]
testified that she was never ordered to pay child support to the Court.
Despite her contentions, the record reflects that the Johnson City Juvenile
Court set an order of child support. Although [Mother] was not present at
said hearing, she was given sufficient notice of the order. Acting within the
scope of her authority as an agent for and on behalf of [Mother], [Mother‘s]
attorney at the time, Laurel Farrell, signed the order. As a result,
[Mother‘s] assertions that she was unaware of her obligation to pay child
support lack merit.
In her brief on appeal Mother argues that because the order setting child support
does not show that it was mailed to her, that Mother was not on notice that she needed to
pay child support. This argument lacks merit. As pertinent, Tenn. Code Ann. § 36-1-
102(1)(H) provides:
(H) Every 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;
Tenn. Code Ann. § 36-1-102(1)(H) (2014).
-34-
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against the Juvenile Court‘s finding by clear and convincing evidence that
Mother willfully failed to support or make reasonable payments toward the support of the
Child.
Next, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that grounds existed to terminate Mother‘s parental
rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-
102(1)(A)(iv) for wanton disregard. In pertinent part, Tenn. Code Ann. § 36-1-
102(1)(A)(iv) provides:
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent‘s
or guardian‘s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child; . . . .
Tenn. Code Ann. § 36-1-102 (1)(A) (iv) (2014).
With regard to this ground the Juvenile Court found, inter alia:
This court finds that there is evidence sufficient to support a finding
that the Mother engaged in conduct exhibiting wanton disregard for the
child‘s welfare. [Mother‘s] refusal to tend to the physical, emotion [sic],
and medical conditions of the child, coupled with her recreational drug use
and abuse while pregnant, her propensity for engaging in criminal activity,
and her periodic incarceration, constitutes conduct amounting to wanton
disregard for her child‘s welfare.
In her brief on appeal, Mother argues:
Mother avers that wanton disregard is exhibited when a parent takes
actions known to be inconsistent with that of responsible parenting and that
would likely place the child in danger or subject to an unjustifiable risk.
[Mother], while charged and convicted of several crimes during the time
that [Julie V.] had custody, did not subject the subject child to any harm or
-35-
danger. The mother only served several months of incarceration at a time,
and was not incarcerated for such long durations that she could not parent
the minor child, if given the opportunity.
Mother‘s argument is disengenuous. The only reason why Mother did not subject
the Child to harm or danger by Mother‘s actions is because Mother did not have custody
of the Child during the time period when Mother was engaging in this criminal behavior.
Although Mother knew that she was a parent, Mother chose to continue to engage in a
life of crime and drug use and abuse. Such actions demonstrate a wanton disregard for
the welfare of the Child. The evidence in the record on appeal does not preponderate
against the Juvenile Court‘s finding by clear and convincing evidence that Mother
engaged in conduct amounting to wanton disregard for the Child‘s welfare.
We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that it was in the Child‘s best interest for Mother‘s
parental rights to be terminated. When considering whether termination of parental rights
is in the child‘s best interest a court is to consider the list of non-exclusive factors
contained in Tenn. Code Ann. § 36-1-113(i).
The Juvenile Court made detailed and specific findings with regard to this issue,
which are quoted in full above. We need not reiterate in detail these findings. We note
that Mother herself admitted that her lifestyle is not an appropriate one for the Child and
that multiple parties testified at trial that the Child is thriving in the custody of Julie V.
and that it would be detrimental to the Child to be removed from Julie V.‘s custody. The
evidence in the record on appeal, as discussed more fully above, does not preponderate
against the Juvenile Court‘s finding that it was in the Child‘s best interest for Mother‘s
parental rights to be terminated.
Turning to the issues raised by Father, we first consider whether the Juvenile
Court erred in finding that clear and convincing evidence was proven that grounds
existed to terminate Father‘s parental rights to the Child pursuant to Tenn. Code Ann. §
36-1-113(g)(1) and § 36-1-102(1)(A)(iv) for wanton disregard.
With regard to this issue the Juvenile Court specifically found:
This court finds by clear and convincing evidence that [Father‘s]
pre-incarceration conduct, as well as his conduct while incarcerated,
displays a wanton disregard for the welfare of the child. Further, [Father‘s]
criminal behavior that resulted in his incarceration is indicative of a much
broader pattern of conduct that renders him unfit and poses a substantial
harm to the welfare of the child. . . .
-36-
The evidence in the record on appeal shows that days after the birth of the Child
Father violated the terms of his probation by committing the offenses of driving on a
revoked license and possessing cocaine for resale, among others. Father‘s probation was
revoked and Father was ordered to serve his sentence. Father himself testified that
Mother told him while she was pregnant with the Child that he might be the biological
father. Father also testified that he received a photo of the Child days after her birth, that
the Child looked like another one of Father‘s children, and that Father exchanged text
messages with Julie V. about his potential parentage of the Child. At the very least,
Father reasonably suspected that he might well be the Child‘s biological father when he
committed the offenses that resulted in his probation being revoked. The evidence in the
record on appeal does not preponderate against the Juvenile Court‘s finding that Father
engaged in conduct prior to his incarceration that exhibited wanton disregard for the
welfare of the Child.
Furthermore, the evidence in the record on appeal shows that Father has been
written up during his incarceration for fighting. The incident that led to the write-up
occurred after Father was on notice that he might be the Child‘s biological father, and
further demonstrates wanton disregard for the welfare of the Child.
Next, we address whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that grounds existed to terminate Father‘s parental rights
to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(9) for failure to manifest the
ability and willingness to assume custody, risk of substantial harm, and failure to
establish paternity. In pertinent part, Tenn. Code Ann. § 36-1-113(g)(9) provides:
(9)(A) The parental rights of any person who, at the time of the filing of a
petition to terminate the parental rights of such person or, if no such
petition is filed, at the time of the filing of a petition to adopt a child, is not
the legal parent or guardian of such child or who is described in § 36-1-
117(b) or (c) may also be terminated based upon any one (1) or more of the
following additional grounds:
***
(iv) The person has failed to manifest an ability and willingness to assume
legal and physical custody of the child;
(v) Placing custody of the child in the person‘s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child; or
-37-
(vi) The person has failed to file a petition to establish paternity of the
child within thirty (30) days after notice of alleged paternity by the child‘s
mother, or as required in § 36-2-318(j), or after making a claim of paternity
pursuant to § 36-1-117(c)(3);
(B)(i) For purposes of this subdivision (g)(9), ―notice‖ means the mailing,
postage prepaid, or the sending by, express mail, courier, or other
conveyance, to the person charged with notice at such person‘s address a
statement that such person is believed to be the biological parent of a child.
Notice shall be deemed received if the statement sent is not returned
undelivered or evidence is not otherwise received by the sender that the
statement was not delivered; and
(ii) ―Notice‖ also means the oral statement to an alleged biological father
from a biological mother that the alleged biological father is believed to be
the biological father of the biological mother‘s child;
Tenn. Code Ann. § 36-1-113(g)(9) (2014).
In his brief on appeal Father argues that this case should be found to be analogous
to State of Tennessee Dep’t of Children’s Servs. v. Williams in which this Court held that
the fact that the father was incarcerated and, therefore, did not have the ability to assume
legal and physical custody of the child did not prove ―a lack of desire or willingness to do
so.‖ State of Tennessee Dep’t of Children’s Servs. v. Williams, No. W2008-02001-COA-
R3-PT, 2009 WL 2226116, at *7 (Tenn. Ct. App. July 28, 2009), no appl. perm. appeal
filed. The case now before us, however, is distinguishable from Williams because the
father in Williams had called and written to the child and had provided support for the
child ―by the means available to him. . . .‖ Id. In the instant case Father never has
written to the Child or called the Child. In fact, Father admitted that he has no
relationship whatsoever with the Child. Furthermore, Father never has paid any support
for the Child. Additionally, and importantly, the court in Williams implicitly found the
father to be credible in his testimony, which is in direct contrast to this case wherein the
Juvenile Court specifically found Father‘s credibility to be ―questionable‖ and cause for
―concern as to the reliability of his testimony.‖ We give a trial court‘s credibility
determinations great deference on appeal. Hughes v. Metro. Gov’t of Nashville and
Davidson County, 340 S.W.3d 352, 360 (Tenn. 2011). Thus, we find Williams to be
distinguishable from the case now before us.
The Juvenile Court found that Father had not manifested an ability and willingness
to assume legal and physical custody of the Child, that placing custody of the Child in
-38-
Father‘s custody would pose a risk of substantial harm to the physical or psychological
welfare of the Child, and that Father had failed to file a petition to establish paternity
within thirty days after he was given notice of his alleged paternity. Clear and
convincing evidence of any one of these grounds would support a termination. Although
Father argues that he was unable to establish paternity within thirty days because he was
in jail, he admitted that he still was in jail when he finally took steps to file a petition to
establish paternity nearly eight months later. Furthermore, as discussed above, the
Juvenile Court found Father to be not credible. The evidence in the record on appeal, as
discussed fully above, does not preponderate against these findings made by the Juvenile
Court by clear and convincing evidence.
Finally, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that it was in the Child‘s best interest for Father‘s
parental rights to be terminated. When considering whether termination of parental rights
is in the child‘s best interest a court is to consider the list of non-exclusive factors
contained in Tenn. Code Ann. § 36-1-113(i).
The Juvenile Court made detailed and specific findings with regard to this issue,
which are quoted in full above. We need not reiterate in detail these findings. We note
that Father himself testified that he never has met the Child and has no relationship
whatsoever with her and that multiple parties testified at trial that the Child is thriving in
the custody of Julie V. and that it would be detrimental to the Child to be removed from
Julie V.‘s custody. The evidence in the record on appeal, as discussed more fully above,
does not preponderate against the Juvenile Court‘s finding that it was in the Child‘s best
interest for Father‘s parental rights to be terminated.
As grounds were proven by clear and convincing evidence to terminate both
Mother‘s and Father‘s parental rights to the Child and it also was proven by clear and
convincing evidence that it was in the Child‘s best interest for Mother‘s and Father‘s
parental rights to be terminated, we affirm the Juvenile Court‘s December 3, 2014
judgment terminating Mother‘s and Father‘s parental rights to the Child.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellants, Christina L. and Ian C., and their sureties, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
-39-