In Re: Angelica S.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 15, 2011 Session
IN RE ANGELICA S.
Appeal from the Juvenile Court for Roane County
No. 20069 Dennis W. Humphrey, Judge
No. E2011-00517-COA-R3-PT-FILED-OCTOBER 4, 2011
This is a termination of parental rights case focusing on Angelica S. (“the Child”), the minor
daughter of Irene S. (“Mother”) and Jose S. (“Father”). When the Child was five, Mother
left her with Father. Mother never returned. Father, an illegal immigrant, subsequently
married Melissa S. (“Stepmother”) and made her the Child’s legal custodian. In 2009, the
Department of Children’s Services (“DCS”) took custody of the Child after the Child alleged
that Stepmother had abused her. The following year, DCS filed a petition to terminate the
parental rights of Mother and Father.1 Following a bench trial, the court granted the petition
after finding, by clear and convincing evidence, that both parents had abandoned the Child
by failing to visit her in the relevant four-month time period and that termination is in the
Child’s best interest. Father appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.
Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Jose S.
Robert E. Cooper, Jr., Attorney General and Reporter, and Benjamin A. Whitehouse,
Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee, for the
appellee, Tennessee Department of Children’s Services.
1
Mother was served with the petition, but did not file an answer or appear at trial. She is not a party
to this appeal and we refer to her only as is necessary to present the relevant underlying facts.
Amy Ruther Callis, Knoxville, Tennessee, Guardians ad Litem.2
OPINION
I.
The Child was born in Indiana on July 13, 1997. Mother and Father were never
married. According to Father, he discovered early in their relationship that Mother used
drugs, had many aliases, and her “whole life,” as he knew it, “was all lies.” As a result,
Father left Mother when the Child was only a week old. According to Father, he was unable
to take the Child away from Mother because he is not a legal United States citizen. When
the Child was still an infant, Father was deported to Mexico. He managed to cross the border
again and return to this country a short time later after Mother called and told him that the
Child was ill. Father moved to Kentucky and Mother followed, but their relationship soon
ended for good. Nonetheless, they both returned to Indiana and took turns at caring for the
Child. When the Child was five, Mother left her with Father; she never returned. As of the
time of trial, Father had not seen or spoken to her since she left.
Father moved to Alabama, where he had relatives, and married Stepmother. He
allowed Stepmother to obtain legal custody of the Child so that the Child could attend school.
Father and Stepmother had two children together and the family, including the Child, moved
to Tennessee in 2008. During that year, Father and Stepmother separated. While Father
moved in with a friend, the Child stayed with Stepmother. Father returned to Stepmother’s
house several days a week to help care for the children. In January 2009, DCS became
involved after the Child reported that Stepmother had abused her – specifically, that
Stepmother had punched her in the face and hit her with a wire coat hanger.
On January 27 and 28, Father and Stepmother attended “child and family team
meetings” at DCS to discuss the abuse allegations and how best to achieve permanency for
the Child. A caseworker noted that Stepmother was uncooperative; the worker also stated
that Father told DCS staff that he was the Child’s uncle. At trial, Father explained that he
lied at that time because he feared he would lose custody of his other children if he were to
be arrested as an illegal alien and again deported. The following day, the Child was ordered
into temporary, protective custody.
Father acknowledged that DCS initially informed him and Stepmother that Stepmother
could regain custody if she took certain steps such as completing parenting classes and an
2
In this appeal, Ms. Callis, on behalf of the Child, joins the brief of Father, but, in her motion to join
in, she limited her agreement with Father’s position.
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assessment to deal with her “inappropriate discipline issues.” Before the Child was removed,
Father was at Stepmother’s house and had questioned the Child about bruising under her eye.
The Child told him that “Billy” had pushed her and she hit her cheek on the corner of the
bed. Father was aware of DCS’s finding that Stepmother had inflicted the injury, but did not
believe the report. Father explained that he had never witnessed any abuse and knew the
Child loved Stepmother. Father said that, as a Christian, he intended to stay married to
Stepmother because they had children together. Father reasoned that Stepmother would take
the necessary steps to get the Child back since he himself “was not able to fight for her.”
Stepmother, however, suffered a nervous breakdown after her own mother became sick and
died. Stepmother never made an effort to regain custody. In March 2009, the Child was
adjudicated dependent and neglected based on Stepmother’s stipulation to the charges of
abuse. Custody was awarded to DCS.
In the ensuing months, there were a few calls to, and visits by Stepmother with, the
Child, but no contact between the Child and Father. On April 20, 2010, DCS filed a petition
to terminate the parental rights of Father and Mother. Ms. Edmonds, who did not become
the Child’s caseworker until June 2010, noted that DCS was mandated to seek termination
because the Child had been in the Department’s custody for more than a year with no
progress made toward permanency by anyone, i.e., Mother was never located despite a
diligent search in several states; Father had no further contact with the Child or DCS since
the Child entered foster care; and Stepmother had completed none of the requirements in the
permanency plan. Edmonds added that there was no compelling reason not to terminate –
the Child was “just simply standing in limbo. . . .”
Edmonds agreed that before the petition was filed, DCS had reason to believe that
Father was the Child’s biological father, including the fact that he was married to
Stepmother, the Child’s custodian, and that DCS had obtained a copy of the Child’s birth
certificate that listed “Jose S.” as the father. She testified that Father’s identity could not be
conclusively confirmed. At the first team meetings, Father not only denied he was the
Child’s father, but said his name was actually “Jacinto S.” Edmonds explained that despite
their suspicions, Father maintained that he was the Child’s uncle, prompting DCS to undergo
a search for the named father, “Jose S,” who they assumed was married to Mother.
Consistent with Edmonds’ testimony, Father conceded he made no further contact
with the Child or anyone at DCS from the time the Child entered foster care in January 2009
until the summer of 2010. Around June 2010, the Child told her foster mother that Father
was actually her father. The foster mother tracked down Father and advised him that his
rights were about to be terminated and he should fight for the Child. The following month,
a DCS worker attempted to meet with Father at Stepmother’s house, but she advised him that
Father did not live there but she knew how to reach him. According to Father, he began
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making calls to Edmonds to ask about the Child, but never got a response. Edmonds
disputed Father’s claim; Edmonds said that Father had left her some messages and she had
attempted to return each call, but never once reached Father directly because he shared a cell
phone with Stepmother. Instead, she was forced to rely on Stepmother to relay her messages.
The worker also testified that Stepmother was difficult to reach and had no voicemail.
Edmonds said the situation improved when Father obtained his own cell phone.
Trial on the pending petition was initially set for August 2010. Edmonds repeatedly
scheduled meetings with Stepmother to review the Child’s permanency plan but a meeting
never took place until August 2 when Stepmother and Father met with Edmonds and her
supervisor at DCS. At the meeting, Father, for the first time, informed DCS that he was in
fact the Child’s father; he told them he wanted custody. Asked about his lengthy lack of
contact with DCS regarding the Child, Father told Edmonds that he had moved and never
received notice that a petition to terminate had been filed. Both Father and Stepmother
acknowledged, however, that Father sometimes lived with Stepmother and that she had
received the notice. Edmonds discussed with Father the steps he would need to take to obtain
custody and reviewed the grounds for termination of his parental rights. Edmonds
specifically advised Father of the requirement that he have more than token visitation with
the Child. In all, Father had three visits with the Child from the time she first entered DCS
custody in January 2009 until the time of trial in January 2011, all of them coming months
after the petition was filed.
Later in August, Edmonds scheduled a meeting to arrange for Father to have
supervised visits with the Child, but Father did not attend. Father said he “did try a few
times” to find out how to secure visitation, but Edmonds never called him back. At the same
time, Father conceded that Stepmother had informed him “quite a few times” that Edmonds
had called to speak with him. Father conceded it would have been better for him to return
to the office of DCS and arrange visits in person after telephone communications proved
difficult. Edmonds was aware that Father and the Child had been speaking by telephone
during the past few months.
Before Christmas 2010, the Child expressed a desire to be adopted; she told Edmonds
that “she did love [Father], but she didn’t feel that he would leave [Stepmother] in order to
care for her” and said she wanted nothing to do with Stepmother. Edmonds explained that
DCS always tried to place a child with family first, and said that even at the time of trial they
were still willing to try to place the Child with another relative – Father’s brother or his
parents in Mexico – if this was feasible and legally possible.
At the time of trial, Father spent half of each week at Stepmother’s house helping to
care for their children and the rest of the time he lived with a roommate. Father worked odd
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jobs such as farming, mowing, or cleaning, and said it wasn’t easy, but he was always able
to find work to support his children. Questioned regarding what would happen to the Child
if he gained custody and was again deported, Father suggested that the Child could live with
his parents.
At the time of the January 2011 trial, the Child was 13 and had been in DCS custody
for two years. The Child was sworn and permitted to testify by telephone. Essentially, she
told the court that she knew Father loved her, but that he didn’t want to leave Stepmother and
his other children. The Child concluded that it would bother her if she got “taken away”
from Father, but “not as much as it would . . . if [her] whole family would be [taken] away.”
She requested that either Father’s brother or her grandparents be given “a chance.”
At the conclusion of the hearing, the trial court terminated the parental rights of Father
and Mother based upon its finding that both parents had abandoned the Child by engaging
in only token visits during the four-month period immediately preceding the filing of the
termination petition.
Father timely filed a notice of appeal.
II.
Father presents the following issues for our review:
1. Whether the trial court erred in terminating his parental rights
when the record was insufficient to establish that Father’s
failure to visit the Child was willful.
2. Whether the trial court erred in terminating his parental rights
in view of the fact that DCS failed to exert reasonable efforts to
reunite the family.
3. Whether the trial court erred in terminating his parental rights
when DCS failed to prove that termination was in the best
interest of the Child.
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III.
We employ the following standard of review in cases involving the termination of
parental rights:
[T]his Court’s duty. . . 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). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is against those findings. Id.; Tenn. R. App. P. 13(d). In
weighing the preponderance of the evidence, great weight is accorded to the trial court's
determinations of witness credibility, which shall not be disturbed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and they
may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d
137, 141 (Tenn. 2002). A parent’s rights may be terminated only upon “(1) [a] finding by the
court by clear and convincing evidence that the grounds for termination of parental or
guardianship rights have been established; and (2) [t]hat termination of the parent’s or
guardian’s rights is in the best interests of the child.” T.C.A. § 36-1-113(c); In re F.R.R., III,
193 S.W.3d at 530. Both of these elements must be established by clear and convincing
evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Evidence satisfying the clear and convincing evidence standard establishes that the truth of
the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003
WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct.
App. 2004).
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IV.
A.
Father challenges the trial court’s determination that he abandoned the Child. He
contends (1) that his failure to visit the Child was not willful, and (2) that DCS failed to exert
reasonable efforts to assist him to provide a suitable home for the Child and reunite the
family. We address these issues in turn.
B.
The trial court terminated Father’s rights on the ground that he abandoned the Child.
Tenn. Code Ann. § 36-1-113 (g)(1)(2010) provides, in relevant part, as follows:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection.
...
(1) Abandonment by the parent or guardian, as defined in §
36-1-102, has occurred;
Section 36-1-102(2010), referenced above, defines the ground of abandonment, as relevant
to the present case, as follows:
(1)(A) For purposes of terminating the parental or guardian
rights of parent(s) or guardian(s) 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 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. . . .
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Under subsection (1) of Section 36-1-102, “‘willfully failed to visit’ means the willful
failure, for a period of four (4) consecutive months, to visit or engage in more than token
visitation.” Tenn. Code Ann. § 36-1-102(1)(E). In the present case, the relevant four-month
statutory period for establishing abandonment by failure to visit is December 20, 2009 to
April 20, 2010, the date the termination petition was filed.3
C.
In its bench ruling, trial court concluded that the ground of abandonment had been
established as follows:
As to [Father], four months of no contact is all it takes. And
when that is proven, that is grounds for termination of parental
rights. But this Court, and I think other courts, would consider
what happens after that. Was there a reason for it?
In this case, it’s apparent one of his reasons was that he had
some fear of deportation. He had fears of losing his other
children. But what’s foremost in the Court’s mind, what has to
be, is the welfare of the [C]hild. So the State did prove that he
didn’t have that contact for the four months.
And thereafter from the proof that I’ve heard today, even when
he knew that these proceedings were going forward, that he only
saw this [C]hild three or four times in the past year. And that is
only token visitation.
And so it appears to be the [C]hild’s wishes, and making she’s
taking one for the team, it sounds like, to preserve this family,
and she had expressed her preference, and I hope the State will
consider that.
But the Court feels that there is abandonment, as described, that
there was reasonable efforts made to preserve the family. And
the State was unsuccessful, but certainly attempted to do that.
3
DCS incorrectly asserts that “the relevant four-month period is between January 19, 2010, and April
19, 2010,” a period of only three months.
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And in regards to both parents, it’s in the best interest of the
[C]hild that parental rights be terminated.
D.
It is undisputed that Father did not visit or have any contact at all with the Child for
over 15 months after she entered DCS custody, through and including the critical four
months immediately preceding the filing of the April 2010 petition. Father asserts that the
“only issues remaining are whether [he] made any attempt to visit and whether [he] has a
justifiable excuse for not visiting. . . .” Father concludes that the answer is “yes” on both
counts. We disagree.
The proof shows that the extent of Father’s “attempts” to visit before the petition was
filed was a few phone calls to someone at DCS at a time when he continued to maintain that
he was not the Child’s father. He alleges his calls were not returned and, apparently, he
dropped the matter. In our view, the proof shows that Father sat by silently and relied on
Stepmother to regain custody, but that did not happen. Father continued to keep silent,
having no contact with the Child or DCS, while DCS undertook a search for both parents so
that they could begin to work toward permanency for the Child. In short, Father failed to
pursue visitation “until [he] realized that [he] was doing wrong,” after termination had
become a real possibility.
In August 2010, after Father admitted that he was the Child’s father, he was provided
contact information for establishing visitation, either through Edmonds or the Youth Villages
agency where the Child was then placed. DCS also developed a parenting plan for him that
addressed income, housing, and stability in general and allowed supervised visitation.
According to Edmonds, Father’s “biggest problem” was his lack of consistency in visiting
or maintaining any contact with the Child. Yet even after Edwards discussed with him the
need for regular visits in order to avoid termination, Father visited only three times in the
next five months until trial, and only one of those was a supervised visit as required. In all,
Father had three visits with the Child from the time she entered DCS custody until the time
of trial, none of them during the critical four-month period.
Father further asserts that his fear of being deported and losing custody of his other
children provides him a “justifiable” reason for failing to visit the Child so that his lack of
contact with her cannot be deemed willful. Again, we disagree. Certainly, Father’s status
as an illegal immigrant is not a ground for terminating his rights to his Child. Neither,
however, does it legally excuse him from meeting his parental obligation to spend time with
the Child. In an analogous situation, this Court has rejected a parent’s argument that his
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failure to visit was not willful. In In re Shipley, No. 03A01-9611-JV-00369, 1997 WL
596281, at *4 (Tenn. Ct. App., E.S., filed Sep. 29, 1997), we observed:
[Father’s] second reason for not visiting -- because he "was on
the run" from law enforcement -- even if true, is a problem of
his own making. As such, it can hardly serve as a legal basis for
his failure to visit. He could have visited had he chosen to do so;
he chose not to.
Moreover, in the present case, once he realized the gravity of the situation, Father
effectively came out of “hiding” – despite the fact that his immigration status had not
changed – and initiated contact with DCS and the Child. This does not change the fact of his
earlier abandonment of the Child, however. See Tenn. Code Ann. § 36-1-
102(1)(F)(providing that “[a]bandonment may not be repented of by resuming visitation . .
. subsequent to the filing of any petition seeking to terminate parental . . . rights. . . .”).
In summary, the evidence does not preponderate against the trial court’s finding that
Father failed to visit the Child during the critical four months immediately preceding the
filing of the termination petition and that his decision to abandon contact with the Child was
willful. The trial court did not err in terminating Father’s rights on this ground.
E.
As we have discussed, DCS pursued termination in this case on one ground – its
petition expressly cited “Abandonment - Failure to Visit,” – and the trial court found the
existence of that sole ground by clear and convincing evidence. Confusingly, however,
Father devotes much of his brief to his argument that the trial court erred in terminating his
rights based on another, separate ground of abandonment – the failure to establish a suitable
home for the Child pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(ii). Under that section,
“abandonment” occurs where a child is removed from the home of a parent or guardian in
which it was found to be dependent and neglected and, “for a period of four (4) months
following the removal, the department or agency has made reasonable efforts to assist the
parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or
guardian(s) have made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears unlikely that they
will be able to provide a suitable home for the child at an early date.” Id. Father concludes:
For the Department to prevail on termination in the instant case
it must prove the existence of three essential elements – that the
Department made reasonable efforts to assist the parents, that
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the parents have made no effort to provide a suitable home, and
that termination is in the best interest of the minor child.
As discussed, above, termination was based on abandonment as a result of Father’s
failure to visit the Child. In view of our conclusion that there is clear and convincing
evidence to support the trial court’s decision, we need not further address this argument
focusing on a ground that was neither alleged by DCS nor found by the trial court. Lastly,
“[t]he existence of at least one statutory basis for termination of parental rights will support
the trial court’s decision to terminate those rights.” In re C.W.W., 37 S.W.3d 467, 473
(Tenn. Ct. App. 2000) ( abrogated on other grounds, In re Audrey S., 182 S.W.3d 838(Tenn. Ct. App. 2005)).
V.
Having determined that a ground for termination was clearly and convincingly
established, we next consider whether there was also clear and convincing evidence showing
that termination is in the Child’s best interest. We are guided by the non-exclusive list of
factors set forth in Tenn. Code Ann. § 36-1-113(i):
(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;
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(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 substances as may render the parent or guardian
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.
There is no requirement that each of these factors must appear before a court can find that
termination is in a child’s best interest. In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App.
2006)(citing Dep’t of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-JV, 2002
WL 970434, at *3 (Tenn. Ct. App. M.S., filed May 10, 2002)).
At the conclusion of the trial, the court stated, in relevant part:
The Court finds the termination of the [Father’s and Mother’s]
parental rights to the [C]hild is in the best interest of the [C]hild.
Testimonial evidence proves [Father and Mother] have not
maintained regular visitation with the [C]hild. [. . . .]. There is
no meaningful relationship with . . . [F]ather and [C]hild for the
period the [C]hild entered foster care and until the filing of the
termination petition. [Father and Mother] have shown little or no
interest[] in the welfare of the [C]hild. [F]ather has not provided
for the support of the [C]hild (paying no child support), . . .
[F]ather has not completed a single request on the permanency
plan (or provided evidence of such), and . . . [Father] has not
provided a suitable home for the [C]hild.
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The [C]hild testified that she would like to find permanence in
the home and care of relatives, not . . . [F]ather.
The evidence does not preponderate against the trial court’s findings. The trial court
correctly pointed to the fact that Father essentially allowed the Child to be placed in foster
care and failed to maintain any contact with her for the next 17 months for reasons that were
in his own self-interest but certainly not in the Child’s. Father went so far as to actively deny
to those working to help the Child that he was the Child’s father, a lie he acknowledged was
a “big mistake” and one that he felt had broken the Child’s heart in the process.
It appears that Father was content to remain silent and do nothing – leaving the Child
“in limbo,” as Ms. Edmonds put it – until the petition was pending for several months and
he decided to become “serious” about trying to regain custody. In our view, the trial court’s
findings reflect its conclusion that this was simply “too little, too late” after Father had
abandoned the Child for so long. For her part, the 13-year-old Child’s testimony indicated
a recognition that Father had essentially chosen Stepmother and their children over being a
parent to her. She expressed a hope that she could find stability and permanence with other
relatives instead. Edmonds indicated that DCS’s first priority was always to allow a child
to live with family and she was willing to meet the Child’s request if at all possible.
The evidence clearly and convincingly establishes that severing Father’s rights is in
the Child’s best interest. Accordingly, the trial court did not err in granting the petition.
VI.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Jose S. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the court’s judgment and the collection of costs assessed below.
_________________________________
CHARLES D. SUSANO, JR., JUDGE
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