In Re: Michaela v.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 5, 2013
IN RE MICHAELA V. ET AL.
Appeal from the Circuit Court for Sullivan County
No. C38987 E.G. Moody, Judge
No. E2013-00500-COA-R3-PT-FILED-NOVEMBER 19, 2013
This is a termination of parental rights case focusing on Michaela V.; Michael V., Jr.; and
Tyler V., the minor children (“Children”) of Michael V., Sr. (“Father”). The Children were
taken into protective custody by the Tennessee Department of Children’s Services (“DCS”)
on August 22, 2008. On January 5, 2011, DCS filed a petition to terminate Father’s parental
rights. Following a bench trial held on October 12, 2011, the trial court granted the petition
upon its finding, by clear and convincing evidence, that Father had abandoned the Children
by willfully failing to provide financial support during the four months preceding the filing
of the petition. The court further found, by clear and convincing evidence, that termination
of Father’s parental rights was in the Children’s best interest. Father has appealed. We
affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Kenneth E. Hill, Kingsport, Tennessee, for the appellant, Michael V., Sr.
Robert E. Cooper, Jr., Attorney General and Reporter, and Derek C. Jumper, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
I. Factual and Procedural Background
The Sullivan County Juvenile Court entered a protective custody order on behalf of
the Children on August 25, 2008, removing them from the home of their mother, Sonya W.
(“Mother”) and placing them in DCS custody.1 At that time, Michaela was eleven years old,
Michael was ten years old, and Tyler was eight years old. The Children were removed from
Mother’s home due to allegations of abuse and neglect. Prior to moving to Tennessee,
Mother and the Children had lived in Texas with Father, where Father was still living when
the Children were taken into protective custody. A fourth sibling of the Children, Tanner,
who was five years old at the time of trial, remained in Texas in the legal custody of the
paternal grandparents (“Grandparents”) and is not included in this action.
On October 22, 2008, the Juvenile Court adjudicated the Children dependent and
neglected as to Mother and entered a no-contact protective order against Father due to
allegations that Father had sexually abused Michaela when the Children lived in Texas. DCS
caseworker Kim Steadman testified that she attempted to contact Father in Texas several
times through the Grandparents but was unable to reach Father until he telephoned DCS on
July 13, 2009. Upon learning that Father wished to participate in the case at bar, Ms.
Steadman requested a home study in Texas through an Interstate Compact on the Placement
of Children (“ICPC”) for possible residential placement of the Children with Father. Texas
Children’s Protective Services (“CPS”) denied the ICPC request for Father’s home study
because he faced a pending criminal charge in Texas for sexual abuse and because he had
a history of CPS involvement for physical abuse and neglect.
Ms. Steadman requested a home study for possible placement of the Children with the
Grandparents as well. Texas CPS denied the ICPC request for the Grandparents’ home study
because the Grandparents lived in close proximity to Father. The Grandparents were allowed
telephone calls with the Children for a short time, but DCS discontinued the communications
after Grandmother admitted allowing Father to listen to the Children during one such
telephone call.
Father participated telephonically in a child and family team meeting on August 19,
2009, at which a permanency plan was created that was ratified by the Juvenile Court on
November 18, 2009. The plan required Father to contact Child Support Enforcement,
financially support the Children, and provide needed items for the Children while they were
1
Mother voluntarily surrendered her parental rights to the Children on April 7, 2010, and is not a
party to this action.
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in state care. It is undisputed that Father failed to pay any child support or provide any
needed items for the Children while the Children were in protective custody.
DCS filed a petition to terminate the parental rights of Father as to the Children on
January 5, 2011. A bench trial was held on October 12, 2011, at which Father failed to
appear, but the Grandparents testified as intervening petitioners requesting custody of the
Children. The trial court found by clear and convincing evidence that Father had abandoned
the Children by willfully failing to support them and that it was in the best interest of the
Children to terminate Father’s parental rights. The trial court entered its final decree on
January 16, 2013. Father timely appealed.
II. Issues Presented
On appeal, Father presents two issues, which we have restated as follows:
1. Whether the trial court properly exercised subject matter jurisdiction in
addressing the State’s petition to terminate Father’s parental rights.
2. Whether the trial court erred by finding that there was clear and convincing
evidence of the statutory ground of abandonment by willful failure to support
for termination of Father’s parental rights.
In addition, the State raises the following issue essential to our review:
3. Whether the trial court erred by finding clear and convincing evidence that
termination of Father’s parental rights was in the Children’s best interest.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
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“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Subject Matter Jurisdiction
Father contends that the trial court lacked subject matter jurisdiction to address the
State’s petition to terminate parental rights because a previously filed petition for termination
of Father’s parental rights was still pending in the Juvenile Court at the time of trial.
Following a thorough review of the record, we conclude that the Circuit Court properly
exercised subject matter jurisdiction.
Subsequent to Mother’s surrender of her parental rights, DCS filed a petition in the
Juvenile Court on April 12, 2010, seeking termination of Father’s parental rights to the
Children. Following a hearing on May 26, 2010, at which Father failed to appear, the
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Juvenile Court reset the hearing for August 9, 2010, entering an order to that effect on June
11, 2010. The record on appeal contains no subsequent orders issued by the Juvenile Court
regarding the Children. The instant petition was filed by DCS in the Circuit Court (“trial
court”) on January 5, 2011.
Throughout the proceedings in the trial court, Father did not raise the issue of subject
matter jurisdiction. This Court generally will not consider on appeal an issue not raised in
the trial court. Tenn. R. App. P. 13(b); see also Heatherly v. Merrimack Mut. Fire Ins. Co.,
43 S.W.3d 911, 916 (Tenn. Ct. App. 2000) (“As a general matter, appellate courts will
decline to consider issues raised for the first time on appeal that were not raised and
considered in the trial court.”) We must, however, consider an issue of subject matter
jurisdiction even when it was not previously raised by a party because jurisdiction is essential
to a court’s authority to act. See Tenn. R. App. P. 13(b) (noting that this Court shall consider
subject matter jurisdiction even when not presented as an issue for review); In the Matter of
H.N.K., No. M2005-02577-COA-R3-PT, 2006 WL 1641359 at *3 (Tenn. Ct. App. June 13,
2006) (“‘It is the duty of any court to determine the question of its jurisdiction on its own
motion if the issue is not raised by either of the parties, inasmuch as any judgment rendered
without jurisdiction is a nullity.’”) (quoting Scales v. Winston, 760 S.W.2d 952, 953 (Tenn.
Ct. App. 1988)). Whether a court possesses subject matter jurisdiction over an action is a
matter of law, which we review de novo with no presumption of correctness. See In re
Bernard T., 319 S.W.3d at 597; In re D.Y.H., 226 S.W.3d 327, 329 (Tenn. 2007).
Pursuant to Tennessee Code Annotated § 37-1-104(c) (2010), juvenile courts have
concurrent jurisdiction with circuit and chancery courts to terminate parental rights. Pursuant
to Tennessee Code Annotated § 37-1-103(a)(1) (2010), however, juvenile courts have
exclusive original jurisdiction to adjudicate children as dependent and neglected. See In re
D.Y.H., 226 S.W.3d at 330 (noting that the two primary statutes conferring jurisdiction on
juvenile courts are Tenn. Code Ann. § 37-1-104, defining areas of concurrent jurisdiction,
and Tenn. Code Ann. § 37-1-103, defining areas of exclusive original jurisdiction). Section
103 further provides that once a juvenile court has acquired jurisdiction over the custody of
a child through a dependency and neglect proceeding, “such jurisdiction shall continue until
the case has been dismissed, or until the custody determination is transferred to another
juvenile, circuit, chancery or general sessions court exercising domestic relations jurisdiction,
or until a petition for adoption is filed regarding the child in question as set out in § 36-1-
116(f).” Id. at 103(c).2
2
The Tennessee General Assembly amended Tennessee Code Annotated § 37-1-103(c), effective July
1, 2011, after the filing of the instant petition, without effect to the relevant passage. See 2011 Pub. Acts,
ch. 485 §§ 1-2.
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This Court has held previously that even when a dependency and neglect proceeding
has been filed in a juvenile court, the circuit or chancery court retains concurrent jurisdiction
to hear a petition for termination of parental rights. See State Dep’t of Human Res.v. Tate,
No. 01-A-01-9409-CV-00444, 1995 WL 138858 at *3 (Tenn. Ct. App. Mar. 31, 1995)
(“Even though a dependency and neglect petition was previously filed in the juvenile court,
Tennessee Code Annotated section 37-1-104(c) vests the circuit court with subject matter
jurisdiction over proceedings to terminate parental rights.”); see also In the Matter of H.N.K.,
2006 WL 1641359 at *11 n.8 (“‘If the child has been found to be dependent and neglected
in juvenile court and the termination action is filed somewhere other than juvenile court, the
juvenile court retains jurisdiction over custody and visitation matters, and the termination
court is limited to making a determination regarding termination of parental rights.’”)
(quoting D AWN C OPPOCK, C OPPOCK ON T ENNESSEE A DOPTION L AW 29-30 (5th ed. Lexis
2005)).
In the case at bar, the Juvenile Court acquired subject matter jurisdiction over custody
of the Children through the dependency and neglect proceedings. As noted above, those
proceedings did not preclude the Circuit Court’s concurrent jurisdiction to address a petition
for termination of parental rights as to the Children. See Tate, 1995 WL 138858 at *3.
Father argues, however, that in this case subject matter jurisdiction remained exclusively with
the Juvenile Court because DCS initially filed in that court a petition for termination of
Father’s parental rights for which no order of dismissal or transfer to Circuit Court appears
in the record. In support of his position, Father cites In re B.N.S., in which this Court
determined that in a venue conflict between two juvenile courts of different counties, the first
juvenile court to acquire jurisdiction retained continuing jurisdiction. See No. M2003-
02524-COA-R3-PT, 2004 WL 892535 at *3 (Tenn. Ct. App. Apr. 26, 2004) (“The clear
policy behind Tenn. Code Ann. § 37-1-103(c) is that once a juvenile court assumes and
exercises jurisdiction over a child, it should continue to exercise jurisdiction over that child
until the case is concluded unless for good reason, it decides to transfer the case to another
court.”). The State is silent regarding this issue in its responsive brief.
The trial transcript contains the following testimony by Travis Sherfey, Ms.
Steadman’s successor as case manager for the Children, on direct examination:
State’s Counsel: Mr. Sherfey, are you aware of whether or not there was
a probable cause finding in Juvenile Court with respect
to [Father]?
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Mr. Sherfey: Initially when we initially filed the TPR, we did so in
Juvenile Court, and the [sic] Judge Toohey3 ruled that we
had not done probable – had a probable cause against
[Father]. That was scheduled and heard on January of
2011, and at that hearing he found the children dependent
neglected as well as relieved the Department of
reasonable efforts.
State’s Counsel: So the Department’s been relieved of reasonable efforts
as of what date?
Mr. Sherfey: January 7th of 2011.
Later in his testimony, Mr. Sherfey stated the following on cross-examination:
Father’s Counsel: You testified that when you filed the original
Termination Petition that it was dismissed?
Mr. Sherfey: Yes.
Father’s Counsel: Voluntarily by the Department. Correct?
Mr. Sherfey: Judge Toohey stated that he could not hear it at this time
because of – he could not find an Order that actually laid
out that the father – the children were dependent
neglected through the father.
Father’s Counsel: Correct. So there had never been a clear and convincing
finding of dependency and neglect or substantial risk of
harm as to the father?
Mr. Sherfey: I know at previous hearings it had been discussed, but he
was not named on the Petition and not in the Orders.
Mr. Sherfey’s testimony regarding the January 7, 2011 hearing in Juvenile Court was
uncontested at trial; indeed, the questions from Father’s trial counsel4 emphasized that the
petition for termination of Father’s parental rights filed in Juvenile Court was voluntarily
dismissed by the State. Mr. Sherfey’s testimony also comports with the timing of the
termination petition filed with the Circuit Court on January 5, 2011. The record on appeal
contains only those pleadings, orders, and exhibits from the Juvenile Court that were entered
as exhibits during the Circuit Court proceeding. Considering Mr. Sherfey’s uncontested
testimony, we must conclude that DCS voluntarily dismissed the petition for Father’s
3
Judge Mark H. Toohey presided over the Juvenile Court proceedings involving the Children.
4
Father’s trial court counsel was not the same as his appellate counsel.
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parental rights filed in the Juvenile Court nearly contemporaneously with its filing the instant
petition in the Circuit Court.
Father also argues that jurisdiction in the Circuit Court was not proper because the
State failed to send notice of its filing the petition for termination of Father’s parental rights
to the Juvenile Court. In support of his argument, Father cites Tennessee Code Annotated
§ 36-1-113(d)(4) (2010), which states in relevant part:
If the petition is filed in a court different from the court where there is a
pending custody, dependency, neglect or abuse proceeding concerning a
person whose parental rights are sought to be terminated in the petition, a
notice of the filing of the petition, together with a copy of the petition, shall be
sent by the petitioner to the court where the prior proceeding is pending.
Regarding whether written notice and a copy of the petition filed in Circuit Court were
filed with the Juvenile Court, we must credit Father’s assertion on appeal that they were not,
as the State did not respond on this point. However, having determined that the petition for
termination of Father’s parental rights was no longer pending in the Juvenile Court upon the
State’s voluntary dismissal of the initial termination petition on January 7, 2011, we
determine that a lack of further written notice to the Juvenile Court did not divest the Circuit
Court of its concurrent jurisdiction. See Tenn. Code Ann. § 37-1-104(c) (“The juvenile,
circuit and chancery courts have concurrent jurisdiction to terminate parental or guardian
rights pursuant to the provisions of title 36, chapter 1; part 1.”). We conclude that the Circuit
Court properly exercised subject matter jurisdiction in terminating Father’s parental rights
to the Children.
IV. Abandonment by Willful Failure to Support
The trial court terminated Father’s parental rights on the statutory ground that he
abandoned the Children by willfully failing to support them. Tennessee Code Annotated §
36-1-113(g)(1) (Supp. 2012) provides, as relevant to this action:
(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; . . .
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Tennessee Code Annotated § 36-1-102(1)(A)(i) (2010) defines abandonment, in relevant
part, as:
For a period of four (4) consecutive months immediately preceding the filing
of a proceeding or pleading to terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) or guardian(s) either have
willfully failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the child; . . .
Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has
previously explained:
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
consecutive months.
In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).
Failure to visit or support a child is “willful” when a person is “aware of his or her
duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so.” Id. at 864.
This Court further explained:
The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.
Id. (citations omitted). Further, as Tennessee Code Annotated § 36-1-102(1)(G) expressly
provides: “Specifically, it shall not be required that a parent be shown to have evinced a
settled purpose to forego all parental rights and responsibilities in order for a determination
of abandonment to be made.”
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In its final judgment, the trial court included the following specific findings regarding
Father’s willful failure to support the Children:
The proof showed that [Father] has failed to make any type of support
payments, monetary or otherwise, since the children have been in the custody
of the state, although there was adequate proof [Father] was employed and
capable of paying support.
[Father] was involved in the creation of permanency plans for these
children adopted as an order of the Juvenile Court on November 18 th 2009,
[Father] was required to contact Child Support Enforcement, financially
support the children, and provide needed items for the children while in care.
[Father] has not contacted Child Support Enforcement, not paid any
support, nor provided any needed items for the children.
[Father] knew or should have known that he had to pay child support
because he participated in the creation of the permanency plan, received a copy
of said plan, and DCS explained the requirement of support and the
consequences of his failure to support the children to [Father].
...
[Father] is able-bodied and capable of working and earning enough to
support himself as well as paying children support.
[Father] was not in jail or incapacitated in the four months before this
petition was filed, and he could have worked and supported the children.
[Father] knew the consequences of his failure to support the children
because DCS gave [Father] a copy of a permanency plan that contained an
explanation of the consequences of his failure to support the children regularly.
(Paragraph numbering omitted.) The trial court found, by clear and convincing evidence, that
Father had willfully failed to support the Children during the more than three years the
Children had been in protective custody prior to trial, including the applicable four-month
period preceding the filing of the petition for termination of parental rights. Upon our careful
review of the record in this cause, we agree.
Father does not dispute the fact that he paid no child support and sent no supplies for
the Children during the time period they were in protective custody, including the four
determinative months preceding the filing of the present petition. Father contends instead
that the trial court erred by finding clear and convincing evidence that his failure to support
the Children was willful because (1) he was not ordered by a court to do so and (2) he was
financially unable to provide support. Father participated telephonically in one child and
family team meeting at which a permanency plan was developed on August 19, 2009. The
permanency plan was ratified by order of the Juvenile Court on November 18, 2009. Under
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the then-goal of “Return to Parent” contained in the permanency plan, among the “Actions
Needed to Achieve Desired Outcome,” was “[Father] will contact Child Support
Enforcement at [number given] and will financially support the children if ordered to do so.”
Father argues that by reason of this language incorporated in the permanency plan and
according to his knowledge, he was only required to pay child support if placed under a court
order to do so.
Father failed to appear at trial, and his counsel was unable to present any evidence that
Father had contacted Child Support Enforcement as directed on the August 19, 2009
permanency plan. We note that this plan also included a “desired outcome” for Father to
“become financially responsible” for the Children and directed him to “provide any needed
items for the children” pending a child support order. DCS case manager Kim Steadman
testified that she reviewed the August 19, 2009 plan with Father, including the requirement
that he support the Children. She explained to Father “word for word” the possibility of his
parental rights being terminated. Father also asserts that he could not have known he was
required to pay support because subsequent parenting plans failed to include the action step
that he do so. The record shows that Father failed to participate in child and family team
meetings held regularly subsequent to August 2009 despite receiving notice by mail of the
meetings. In addition, Ms. Steadman and Mr. Sherfey both testified that Father never
contacted them to inquire regarding the Children’s needs and what items he might send the
Children. We note that Father was under a no-contact order that prevented him from visiting
the Children or sending them letters or greeting cards. As Mr. Sherfey stated at trial, Father’s
method of sending needed items to the Children would have been via DCS personnel.
We determine that Father had been informed by DCS that he was required to pay child
support and provide needed items for his Children. He was also under court order, through
the Juvenile Court’s ratification of the August 19, 2009 permanency plan, to contact Child
Support Enforcement and, pending a resulting child support order, provide needed items for
the Children. In addition, as the trial court noted, Father, who was thirty-five years old at the
time of trial, is presumed to have known he was under a legal obligation to support his
children. See Tenn. Code Ann. § 36-1-102(1)(H) (2010) (“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.”).
Father relies on In re J.J.C., D.M.C., & S.J.B., 148 S.W.3d 919, 927 (Tenn. Ct. App.
2004), in which this Court reversed the trial court’s finding that the father’s failure to pay
child support had been willful in part because “the permanency plans not only failed to state
that Father was obligated to pay child support, they, in fact, implied that he was not required
to do so unless there was a court order of support.” We determine the instant case to be
factually distinguishable from In re J.J.C., in which the father had consistently provided
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items for his children while they were in protective custody and had contacted DCS
personnel several times without being informed by DCS personnel of the requirement to pay
support. See id.
In contrast, Father in this case sent nothing to the Children while they were in
protective custody. He was specifically directed to contact Child Support Enforcement and
was unable to present any proof that he did so. Ms. Steadman’s testimony revealed that she
and Father reviewed the requirement that he support his Children “word for word,” and the
Grandparents acknowledged that they were informed of Father’s support requirement during
the August 19, 2009 child and family team meeting, in which they also participated
telephonically. Moreover, “the obligation to pay support exists even in the absence of a court
order to do so.” State, Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523-24
(Tenn. Ct. App. 2004); see, e.g., In re Emily N.I., No. E2011-01439-COA-R3-PT, 2012 WL
1940810 at *13 (Tenn. Ct. App. May 30, 2012) (concluding that the father’s reliance “on the
fact that he was not specifically ordered by the court to remit child support” until a month
prior to filing of the petition for termination was erroneous in light of his presumed
knowledge of the obligation). Father’s reliance on In re J.J.C. is misplaced.
Father also posits that his failure to pay child support was not willful because he did
not have the ability to earn income due to poor physical health and a six-month term in a drug
rehabilitation facility during the two years preceding the trial. See In re R.L.F., 278 S.W.3d
305, 320 (Tenn. Ct. App. 2008) (“‘A parent who fails to support a child because he or she
is financially unable to do so is not willfully failing to support the child.’”) (quoting In re
M.J.M., Jr., No. M2004-02377-COA-R3-PT, 2005 WL 873302 at *8 n.17 (Tenn. Ct. App.
Apr. 14, 2005)). According to the Grandparents’ testimony, Father weighed approximately
410 pounds prior to his undergoing “gastric sleeve” weight loss surgery in December 2010,
approximately one month before the filing of the instant petition. By the time of trial,
Father’s weight was down to 325 to 330 pounds. Grandfather stated that although Father
previously had been employed part-time mowing lawns and performing maintenance chores
at the Grandparents’ mobile home park, by the time Father was at his heaviest weight, he
could not fit behind the steering wheel of the riding lawn mower and was physically unable
to complete the work. Grandmother added that Father suffered from painful bouts of gout
that necessitated him engaging friends to stay with him and assist with his personal care. She
indicated that she and Grandfather paid many of Father’s expenses.
Despite Father’s difficulties with weight and other health problems, the trial court
found that Father was able-bodied and capable of working. Ms. Steadman testified that in
her telephone calls with Father in 2009, he indicated that he was employed performing
maintenance at the Grandparents’ mobile home park and gave no indication that he was
physically unable to work. Father’s reason for failing to appear at the trial, per his counsel,
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was that he could not miss college classes. The Grandparents’ testimony indicated that these
classes were actually online but that Father physically traveled to the college’s administrative
offices approximately every other week. Grandfather acknowledged that Father had applied
for disability but had been denied. The record does not indicate that Father was wholly
incapable of employment during the relevant four-month period.
Regarding Father’s enrollment in a drug rehabilitation program, the Texas ICPC
report demonstrated that Father was arrested on June 14, 2006, for possession of a controlled
substance and that the charge was deferred with five years of probation. According to
Grandfather, it was the 2006 “drug bust” that prompted the Grandparents to bring the
Children and their youngest sibling, five weeks old at the time, into the Grandparents’ home.
Grandfather stated that the Texas criminal court assigned Father to a minimum-security
facility for first-time offenders with substance abuse problems and that Father completed a
six-month program there. Father presented no evidence of the completion date of his
rehabilitation program. According to the time line indicated by the Grandparents’ testimony,
Father completed rehabilitation before he enrolled in an online program to become certified
as a chemical dependency counselor, all of which occurred before Father underwent gastric
sleeve surgery in December 2010. Grandmother stated that Father missed an October 7, 2010
court date because he was having gallbladder pain and gave no indication that Father was
unable to appear due to his rehabilitation program. The record does not support Father’s
assertion that his time confined to a rehabilitation program precluded his ability to be
employed during the determinative four months preceding the filing of the instant petition.
We conclude that the evidence does not preponderate against the trial court’s
determination by clear and convincing evidence that Father abandoned the Children by
willfully failing to support them during the more than three years they were in protective
custody, including the four months preceding the filing of the termination petition. The trial
court did not err in terminating Father’s parental rights based upon this ground.
VI. Best Interest of Children
When a parent has been found to be unfit by establishment of a statutory ground for
termination of parental rights, as here, the interests of parent and child diverge, and the focus
shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee
Code Annotated § 36-1-113(i) (2010) provides a list of factors the trial court is to consider
when determining if termination of parental rights is in the child’s best interest. This list is
not exhaustive, and the statute does not require the court to find the existence of every factor
before concluding that termination is in a child’s best interest. In re Audrey S., 182 S.W.3d
at 878 (“The relevancy and weight to be given each factor depends on the unique facts of
each case.”). Further, the best interest of a child must be determined from the child’s
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perspective and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
controlled substances5 as may render the parent or guardian
5
Effective July 2012, after the filing of the petition in the instant case, The Tennessee General
Assembly amended Tennessee Code Annotated § 36-1-113(i)(7) to substitute “alcohol, controlled substances
or controlled substance analogues” in place of “alcohol and controlled substances.” See 2012 Pub. Acts ch.
848, § 8.
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consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
In determining that termination of Father’s parental rights was in the best interest of
the Children, the trial court stated:
The Court finds that [Father] has not made changes in his conduct or
circumstances that make it safe for the child to go home with him, because he
has criminal charges related to sexually abusing the child Michaela [V.]
pending in Texas, and he does not have a stable source of income, has not
supported the children.
[Father] has not made lasting changes in his lifestyle or conduct that
would make it safe for the child[ren] to return to his home after reasonable
efforts by the state to help, so that lasting change does not appear possible
because [Father’s] lifestyle has not changed one bit since the children came
into custody in 2008.
[Father] has not paid child support.
[Father] has shown little or no interest in the welfare of the children.
There is no meaningful relationship between the children and [Father].
The children do not want to return to [Father’s] home and want to be
adopted, instead.
[Father] is not a viable placement option for the children because of his
pending sexual abuse charges, there is a standing no contact order with the
children, and he failed the home study for placement of the children in his
home.
(Paragraph numbering omitted.) The trial court therefore concluded that it was in the
Children’s best interest to terminate Father’s parental rights. We agree.
Father has not raised on appeal the issue of whether termination of his parental rights
was in the Children’s best interest, and Father offers no argument against the trial court’s
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finding in this regard. The State properly has raised the issue because having found a ground
for termination of parental rights, a trial court is required to consider, as we must on review,
whether termination of those rights is in the child’s best interest. See Tenn. Code Ann. § 36-
1-113(i); In re Audrey S., 182 S.W.3d at 877. The trial court in its Final Decree considered
the factors enumerated in Tennessee Code Annotated § 36-1-113(i) and specifically found
that all relevant factors weighed against maintaining Father’s parental rights. In addition, the
court noted the following regarding Father’s failure to appear at trial:
[Father] was not present and counsel related to the Court that he was in college
in Texas and could not miss class. The Court recited that [Father] was not
present at the last hearing which was continued on his behalf, and a subpoena
was issued for his appearance today, and therefore he is voluntarily absent
from these proceedings.
The record demonstrates that throughout the three years the Children were in
protective custody, Father participated in one child and family team meeting telephonically
but otherwise failed to participate in any DCS meetings or court proceedings. The no-contact
order entered by the Juvenile Court against Father prevented him from directly contacting
the Children, but Father also showed little involvement with or meaningful connection to the
Children through his failure to accomplish any steps in the permanency plan created in
August 2009 and his complete failure to provide financial support during the relevant time
period. DCS case manager Kim Steadman testified that she had difficulty reaching Father
in Texas after the Children were taken into protective custody in August 2008. She spoke
to Grandmother several times before Father eventually contacted her on July 13, 2009, nearly
a year after the initial removal from Mother’s home.
At the close of trial, the court expressed concern from the bench regarding the effect
that terminating Father’s parental rights would have on the Children’s relationship with the
Grandparents. The Grandparents’ testimony emphasized that Father lived approximately a
quarter-mile and “up on a hill” from Grandparents’ home and that they were willing to keep
the Children separate from Father if ordered to do so by the court. Their testimony also
demonstrated, however, that the Grandparents refused to consider it possible that allegations
of Father’s sexual abuse of Michaela could be true, that they supported and cared for Father’s
needs, and that they allowed the sibling in their custody to maintain a relationship with
Father. The evidence does not preponderate against the trial court’s finding that it would not
be safe to return the Children to Father’s home or to the Grandparents’ home.
We note also that testimony from Mr. Sherfey and a therapeutic counselor working
with all three Children, Kathryn Leonard, indicated that despite some initial behavior
problems that necessitated placement in separate foster homes, the Children were flourishing
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by the time of trial. Clearly DCS was committed to a goal of reuniting the Children in one
adoptive home. From a thorough examination of the record before us, we determine that
there is clear and convincing evidence that termination of Father’s parental rights was in the
Children’s best interest.
VII. Conclusion
The judgment of the trial court terminating the parental rights of Father is affirmed.
Costs on appeal are taxed to the appellant, Michael V., Sr.. This case is remanded to the trial
court, pursuant to applicable law, for enforcement of the trial court’s judgment and collection
of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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